The Central Role of Protecting HumanRights While Fighting TerrorismTerrorism and Counterterrorism - Comparing Theory and Practice -Week 5 Assignment

Eric Vought

Choose one of the following four assumptions to test:

1. Negotiating with terrorists encourages more terrorism

2. Suicide terrorists are rational actors Cyberterrorism does not exist

3. You can fight terrorism without infringing upon human rights

Do this by following the structure as presented in the videos. Your essay shouldconsist of the following four elements:

1. Origin of the claim: Who has claimed that this assumption can be con-sidered true? (For the first assumption, this would mean: who has saidnegotiating with terrorists encourages more terrorism?)

2. Explain why it is important to test this assumption.

3. Outline the evidence for or against this assumption (expert and academicliterature/sources, and if available, empirical data). Conclusion:

4. Explain why you would label this particular assumption true, partly trueor false. (Please note: the term myth was confusing to some students soto avoid further confusion in the assignment, only use true, partly trueor false)

Since the attacks of 11 September 2001, many commentators have arguedthat we face a New Terrorism which fundamentally changes the rules and thusrequires a new approach, including, apparently, revisiting our appreciation offundamental rights and liberties or requires new authorities for agencies involvedin counterterrorism.1 At the same time, these commentators tend to be rathervague on 1) what, precisely makes modern terrorism fundamentally different,and 2) why new authority is needed.

James Dempsey and David Cole, by contrast, argue that even if post-9/11terrorism represents, to some degree, new threats,

1

2To the contrary, one of the lessons of the four years since September11, 2001, is that, even as we face new and more difficult challenges,the fundamental principles that ought to govern the response of ademocratic society to terrorism remain unchanged: we should focuson perpetrators of crime and those planning violent activities, avoidindulging in guilt by association and ethnic profiling, maintain pro-cedures designed to identify the guilty and exonerate the innocent,insist on legal limits on surveillance authority, bar political spying,apply checks and balances to government powers, and respect basichuman rights. Departing from these principles, as the military andintelligence agencies have done, for example, in abusing detainees atAbu Ghraib prison in Iraq, is not only wrong but actually harmsnational security by fueling anti-American sentiment.2

or, in other words, that you can fight terrorism without infringing on humanrights. It is crucial to test this assumption because the very concept of rights aspolitical trumps against government interference or the wishes of the majorityare inherent to the idea of self-government itself, and (US) Constitutional gov-ernment in particular3. If we discard the concept of rights in order to combatterrorism, we discard self-government and, effectively, we lose either way. AsDworkin points out, the idea that rights must give way to public safety does notsave us from this conundrum but rather requires us to pay even more carefulattention to rights:

When the divisions among the groups are most violent, then thisgesture, if law is to work, must be most sincere. ... The governmentwill not re-establish respect for law without giving the law someclaim to respect. It cannot do that if it neglects the one feature thatdistinguishes law from ordered brutality. If the government does nottake rights seriously, then it does not take law seriously, either.4

Dempsey and Cole quote Emerson in support of the idea that the authority ofthe government to investigate or punish a crime which has been or is about tobe committed is not at issue since, in such cases, any impact upon the rightof an individual to freedom of expression has never been considered to be ofconstitutional dimensions.5 This is true because a criminals rights are onlyjustifiably violated by society when the criminal, in turn, violates the rights,threatens or takes the life of another: the criminal is self-selected by his orher behavior rather than ideas, innate characteristics, or actuarial prediction offuture offense (profiling). Of necessity, it is only true when due process guaran-tees are held inviolate, that society, to the extent humanly possible, ensures thatthe criminal is self-selected. Otherwise, we do descend into ordered brutalityrather than remaining a society of law.

It is particularly critical to protect the rights of free speech, free associa-tion, and free assembly from overreactions based on fear of terrorism, not onlybecause not doing so is expressly hypocritical in little-r republican society, butbecause engaging in political profiling and guilt-by-association is likely to be

3ineffective and counterproductive. It is impractical to monitor all adherents toa philosophy, members of a group or ethnicity, etc., on the off-chance that theymay commit terrorist acts, attempting to do so tempts agencies to engage instereotypes which then lead them to ignore real threats, and [f]urther, if en-tire groups are identified as enemies, the cohesiveness of the group may hardenagainst society, substantially diminishing the likelihood that law enforcementagencies will find cooperative witnesses. If the FBI treats an entire nationalityor group as suspect, members of that nationality or group will in turn treat theFBI as suspect, making even legitimate investigation much more difficult.6

Counterterrorism is therefore best approached by means, as much as possi-ble, divorced from ideology. As terrorist acts are inherently criminal, regardlessof ideology, this does not restrict legitimate investigation7. When investigationsare based guilt-by-association, by contrast, they risk alienating the very commu-nities which must be relied upon to produce actionable intelligence on possiblethreats8.

The assumption that it is possible to fight terrorism without violating humanrights is therefore true and the inverse, that it is not possible to fight terror-ism without violating human rights is both practically incorrect and logically acontradiction-in-terms.

Notes1Martha Crenshaw, The Debate over New vs. Old Terrorism. Prepared for presentation

at the Annual Meeting of the American Political Science Association, Chicago, Illinois, August30-September 2, 2007

2James X. Dempsey and David Cole. Terrorism and the Constitution: Sacrificing CivilLiberties In The Name Of National Security. The New Press. Scribd ed. 2005. 14

3Dworkin, Ronald. Taking Rights Seriously. Harvard University Press. Cambridge, MA.1978. See xi, in particular.

4Ibid. 204-2055Thomas I. Emerson, National Security and Civil Liberties, The Yale Journal of World

Public Order 83, 99 (1982)] as quoted in supra Dempsey and Cole. Terrorism and the Con-stitution. 43

6Supra Dempsey and Cole. Terrorism and the Constitution. 44-457Ibid.8Human Rights Watch. "Illusion of Justice- Human Rights Abuses in US Terrorism Prose-

cutions." Columbia Law School Human Rights Institute. July 2014. ISBN: 978-1-62313-1555.3