Laura Donohue | The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press: 2008)
by Joseph Jerome, a Legal and Policy Fellow at the Future of Privacy Forum, where he explores privacy challenges emerging out of Big Data and the Internet of Things.
Counterterrorism policy is often described as a pendulum swinging between security and liberty, but The Cost of Counterterrorism: Power, Politics, and Liberty suggests that counterterrorism policy is best characterized as a spiral, ratcheting up security at the expense of liberty. Over and over again, Laura Donohue details how government officials insist that national security demands extraordinary powers without end. In one chapter, Tony Blair pleads for more power than “just surveying [terrorists] and being sure enough to prosecute them beyond a reasonable doubt.” Later, when allies and the international community suggested the United States engaged in torture, Condoleezza Rice explains that “protecting citizens [was] the first and oldest duty of any government” and that this obligation entails “hard choices” for democratic governments. In both cases, traditional systems of justice were deemed unable to meet today’s terrorist threat. Comparing and contrasting the policies of the United States and the United Kingdom, Donohue looks at how both countries have used the scourge of terrorism to institute laws that dramatically curtail rights to life and liberty, property, privacy, and free speech. Over the course of four chapters, she analyzes the two states’ common experiences with interrogation and detention, their approaches to disrupting terrorist financing, restrictions on free speech, and pervasive surveillance. In the end, she argues not only that curtailing these rights is corrosive to the health of liberal democracy, but also that fixating on security misses the broad social, political, and economic costs of counterterrorism policy.
I. Indefinite Detention and Coercive Interrogation: From Anathema to Acceptance
The right to life and liberty is embedded deep in English—and by extension American—legal history. Nevertheless, Donohue shows that when both governments deviated from these principles–the United Kingdom in Northern Ireland and the United States in its eagerness to combat al Qaeda–they only encouraged further resistance and quickly started sliding down slippery slopes. In Northern Ireland, Donohue chronicles the UK’s response to The Troubles, where the constitutional status of Northern Ireland unleashed decades of sectarian violence. The government initially responded with a set of internment policies that would result in greater levels of violence and instability. As the situation continued to deteriorate, officials began to engage in “deep interrogation” techniques to uncover more intelligence about paramilitary activities. While the European Court of Human Rights (ECHR) ultimately concluded the United Kingdom’s use of wall-standing, hooding, noise, sleep deprivation, and a bread and water diet “did not occasion suffering of the particular intensity and cruelty implied by the word torture,” Donohue suggests these policies combined with a prominent role by military forces in law enforcement served to undermine the entire legal system in Northern Ireland. The army had become responsible for searches and seizures, enforcing curfew, stopping vehicles, and interrogating citizens while Irish Catholics believes the judiciary had become irreparably skewed against them, with juries and judges derived largely from the Protestant majority. The situation eventually encouraged the government to set up a system of jury-less, single-judge courts that became known as the “Diplock Courts” in 1973. These courts, which have only recently been disbanded, proceeded to rely on forced confessions to obtain the convictions of thousands of Northern Ireland terrorist suspects. A similar slide occurred in the United States when, after 9/11, the Bush administration concluded that it was engaged in “a new kind of war.” A new war demanded new methods of fighting, and Donohue goes into great detail how this mindset caused the executive branch and the military to weaken the nation’s commitment to the Geneva Conventions. The Bush administration repeatedly insisted that prisoners captured during the war on terror would be “treated humanely,” while sending mixed messages about what exigent circumstances or exceptions might exist. As a result, Donohue argues, longstanding law became twisted. “I’ll listen to all the legalisms and announce my decision when I make it,” Bush announced, perhaps blind to the precedent he was setting. Extraordinary circumstances in Afghanistan and later at Guantánamo Bay opened the door to more permissive interrogation and detention standards that would become routine during the Iraq War. Donohue notes that both in the United States and the United Kingdom, detention and interrogation policies swept up innocents and alienated important domestic and foreign allies And, in the long run, had serious international repercussions. For example, the United Kingdom’s policies in Northern Ireland led to its actions being challenged before the ECHR, while the United States, for its behavior, would have China suggesting that “‘secret prison’ and ‘torturing prisoners’ have become synonymous with America.”
II. Financial Counterterrorism: An Expensive Solution to a Cheap Problem
While British and American detention and interrogation policies reveal how counterterrorism measures can grow harsher in response to situations on the ground, Donohue suggests that both countries’ efforts to interrupt the flow of funds to terrorist groups have simply been misguided. Antiterrorist finance may have relatively uncontroversial aims but can have significant adverse consequences when policies are poorly implemented. In the United Kingdom, for example, financial forfeitures moved out of the criminal legal system and into the civil legal system. As a result, the standards for asset forfeiture have weakened to the point where forfeiture has become “divorced from one’s conviction for any underlying criminal offense.” Elaborate forfeiture laws, Donohue argues, weaken individual property rights by expanding the crimes for which property can be seized and then placing heavy burdens on individuals to prove their assets are unrelated to criminal activity. This further provides a financial windfall for governments, incentivizing the development of enforcement agencies with an interest in extensively investigating and advancing forfeiture proceedings. In addition to these perverse incentives, antiterrorist finance policy can also interfere with legitimate money flows, such as remittances and humanitarian aid. In the wake of 9/11, President Bush issued Executive Order 13,224—an order he proudly referred to as “draconian”—that explicitly made it illegal for anyone to attempt to alleviate any humanitarian suffering resulting from assets seized under the initiative. Donohue notes that both governments have been eager to boast about the funds they’ve frozen and kept out of terrorists’ hands, but she argues this ignores a fundamental fact about terrorist organizations: terrorists do not require extensive funding. For example, the Provisional IRA operated on only £1.5 million per year; and, according to the 9/11 Commission, the cost of executing the 9/11 attacks was only between $400,000 and $500,000. Thus, Donohue questions whether expanding government power at the expense of individual property rights, their financial privacy, and disrupting international money flows is worth the return of these policies.
III. Privacy and Surveillance: Big Data Becomes Big Brother
Donohue’s discussion of government surveillance and how that impacts individual privacy takes on a whole new character in light of Edward Snowden’s revelations these past few months. “None of the ordinary activities that any one of us engages in . . . is new,” she writes. “But the recording of this information, its integration, and its swift recall—by private or public entities—are unprecedented.” She worries that both countries are—or were—on the verge of where “psychological surveillance” of every single citizen or potential enemy becomes possible. The majority of her focus and analysis, however, is on American surveillance policies. Problems with British surveillance are discussed, but Donohue suggests that Europe’s culture of privacy and jurisprudence from the ECHR has had a positive influence on the United Kingdom. On the other hand, she argues that American officials have felt few restraints on efforts to expand the scope of their surveillance capabilities. This fear appears to have been confirmed by the steady stream of revelations revealed by Edward Snowden, most recently reports that the NSA sought the power to acquire data from “anyone, anytime, anywhere.” Donohue is skeptical of whether reform is possible. She discounts attempts by Congress and the courts to rein in “the executive branch’s determined efforts to continue on its path” to expand its power to monitor American citizens. For example, Donohue traces concerns about the growing use of wiretaps after the Second World War and notes that national security was routinely invoked to justify their use. After Katz v. United States, 389 U.S. 347 (1967), attempted to re-craft the contours of the Fourth Amendment to deal with these technological developments, the Johnson administration was quick to “give lip service” to wiretapping concerns, even calling for the broad prohibition of all public and private wiretapping. At the same time, it insisted upon a national security exception to the Fourth Amendment’s warrant clause, when national security was already being used as a primary rationale for the use of wiretaps. This sort of circular logic promoted the status quo even as legislative reforms were instituted. In addition to wiretaps, Donohue also discusses how a number of specific operations conducted by the NSA, FBI, CIA, and the Pentagon under the auspices of national security directly targeted American citizens on the basis of their political beliefs. She notes that protections put in place after the Church Committee, including the Foreign Intelligence Surveillance Act, have subsequently been either ignored or rolled-back in recent years. The major challenge today is that government’s desire to “get inside [our] heads” creates major problems with what Donohue calls the contextual data merger: “Top grades in history may suggest that [a student] is simply a good student. A planet ticket for a week in Egypt may simply look like a holiday. And a cup of coffee in a cafe may be just that. But each piece of data taken together, in the context of a terrorist threat, could put [our student] in a difficult position.” Efforts to combat terrorism via information gathering rarely include limitations on the purpose for which that data can be used, and the end result, according to Donohue, is that everyone in society can quickly become a suspect for something. Furthermore, Donohue demonstrates how little oversight there is of these intelligence programs. She is sharply critical of Congress’ role, noting that Congress held 51 hearings on privacy issues between 1998 and 2001, but only 16 hearings between 2002 and 2004, even as surveillance efforts dramatically increased. Somewhat ominously, at several points Donohue appears to ponder whether a surveillance apparatus designed to combat terrorism could instead become more focused on perpetuating itself. The United States is “courting the shadow of Big Brother,” she concludes.
IV. Terrorist Speech and Free Expression: A Battle in the Marketplace of Ideas
Speech regulation on behalf of national security demonstrates an interesting contrast between the United States and the United Kingdom, but even here, there are many more similarities than differences in how the two countries have tried to restrict free expression. Donohue looks at three primary categories of speech: (1) political speech, (2) knowledge-based speech, and (3) situations where the state acts as either employer or information-holder. Donohue gives regulations on political speech short-shrift. After exploring the regulation of political speech throughout American history, she acknowledges that today political speech is largely protected by both the Supreme Court and strong cultural norms. Even the United Kingdom, which remains more willing and able to restrict political expression, has mitigated much of its suppression, and Donohue limits her discussion to the UK’s broadcast ban against terrorist organization and its more recent prohibition against “the glorification of terrorism.” On the other hand, both governments have become much more eager to restrict knowledge-based speech, particularly since 9/11. In the United States, the executive branch has pressured microbiologists against publishing articles that could be helpful to terrorists. Secrecy orders under the Invention Secrecy Act of 1951, which permits the Patent and Trademark Office to prevent disclosure of new technologies if “detrimental to national security,” have also expanded in the past decade. This trend also applies to limiting the free speech of government employees and restricting information flowing out of government itself. Donohue questions whether these forms of secrecy cause more harm than good, and argues that security through secrecy is untenable. The broad dissemination of knowledge may be worth potential risks, and she endorses calls for “security by accomplishment” as an alternative. “[S]tates are more likely to find solutions to vulnerability through free speech,” she writes. Perhaps even the war on terror requires more speech and debate, not less.
The Cost of Counterterrorism demonstrates that effective counterterrorism policy is all about anticipating the unintended consequences. Policies meant to protect can cause great damage. Carefully identifying the costs of our policies, she argues, “allows for the possibility of ameliorating them through other, less harmful provisions.” By Laura Donohue’s account, when it comes to considering cherished rights to free speech, privacy, property, life and liberty, too many British and American counterterrorism policies should be found wanting.
- Oren Gross, “The Process of Balancing,” 45 Tulsa L. Rev. 733 (2009). Somewhat Positive
- Eran Shor, “Terrorism and Human Rights in the New Millenium: In Search of Equilibrium,” 33 Qualitative Sociology 205 (2010). Positive
- Recent Books, 5 Carnegie Rep. 1 (2008). Neutral
- Kevin J. Cooney, Book Review, 46 Choice 1179 (2009). Somewhat Critical
- Ronald R. Krebs, “In the Shadow of War: The Effects of Conflict on Liberal Democracy,” 63 Int’l Orgs. 177 (2009). Positive
- Michelle Scholastica Paul, Book Note, 41 N.Y.U. J. Int’l L. & Politics 511 (reviewing The Cost of Counterterrorism). Somewhat Positive
- Peter Romaniuk, Book Review, 124 Pol. Sci. Q. 214 (2009). Somewhat Positive
- Jonathan Stevenson, Book Review, 51 Survival 238 (2009). Positive
- David Cole, The Brits Do It Better, The N.Y. Rev. of Books, June 12, 2008. Very Positive