More on Flawed Research and Flawed Counterterrorism Policies

I want to concur with the thoughtful views articulated by Michael German last week addressing terrorism and counterterrorism research. Having spent twenty years working and researching issues related to political violence and terrorism in Northern Ireland, I underscore both the limits of what we know about individual and group mobilization to violence, and more generally the paltry state of sustained and rigorous empirical legal research on the success or failure of exceptional powers, exceptional process, and counterterrorism measures.

Legal analysis of the “war on terror” has been a growth industry in the United States, the United Kingdom, and elsewhere since September 11, 2001. As my colleague Colm Campbell and I have explored, normative assertions underpin much of the justification for exceptional or ordinary approaches to terrorism rather than empirical evidence. Putting emphasis on the presence and quality of empirical research, as German does, highlights significant data gaps. An emphasis on procuring robust empirical data on states of exception raises important questions about whether many of the assumptions underpinning assertions in the national security sphere are normatively justifiable. Recognition of empirical lacunae tends to highlight other gaps — specifically that claims for the effectiveness of particular exceptional powers also often rely upon normative assertions (“they ought to work”), unsupported by verifiable data.

Emergencies and national security issues present unique challenges to data-gathering by empirical legal researchers —to state the obvious. Few countries permit outsiders’ presence during waterboarding. But, if data on interrogation practices and on exceptional process or exceptional courts’ operations could be obtained, they would offer a route to examining claims about the value of the ordinary or the exceptional. Moreover, such data offer a means to investigate critical assumptions that pervade national security discourses concerning the efficiency, necessity, and rationale for certain forms of macro- and micro-regulation. Courts and custodial settings are particularly important sites in which the state and non-state actors engage in what Charles Tilly called the repertoire of contention.

The long-running conflict in Northern Ireland offered a unique and long-term laboratory to empirically assess and address exceptional state practices — including my early research on the use of lethal force against paramilitary actors (a precursor version of contemporary targeted killings), and sustained research on the operation of exceptional courts, detention practices, and interrogation methods addressing their long-term mobilization effects. While not all comparative analysis is necessarily transferable to assessing US practices, there are lessons to be learned from the sustained, rigorous empirical research conducted in a similarly situated democratic state managing a long-term terrorism challenge. It is important to underscore that the vast swathe of the empirical research carried out in the UK and Northern Ireland was funded by independent research councils, supporting strict social science ethics and research validation processes for the data produced.

Comparative learning affirms the benefit of taking on board the simple idea of valuing the independent assessment of exceptional powers and practices over the long haul. This requires investing national security researchers in the collection and investigation of terrorism-related data, and specifically the necessity of honing in on state practices with a critical eye. This approach requires farsighted commitment and a willingness to wait a while before one pronounces on the success or failure of counterterrorism measures. It also demands a certain humility from researchers, mandating a move away from sweeping claims about the efficacy of executive and other measures to address terrorism, and understanding that the results may be murky in the short-, medium-, and long-term.

 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).