The persistent threat of terrorism continues to pose challenges for lawmakers and government officials in democracies all over the world. The relationship between personal freedoms and counterterrorism measures also raises numerous ethical and legal questions. An expert panel addressed these topics at a Wilson Center on the Hill event on November 12 entitled "Terrorism and the Rule of Law: Perspectives from Israel and the United States." Speaking on Capitol Hill, Sonya Michel, Director of United States Studies, introduced a distinguished group of speakers who are part of the International Task Force on Terrorism, Democracy and the Law.
Ulrich Sieber, director of the Max Planck Institute for Foreign and International Criminal Law , began the discussion by stating that reactions to terrorism can have unintended consequences that suppress personal freedoms. In this way, he warned, the reaction to terrorism in democracies can ultimately undermine their core values. In his view, "It is "most important to balance security and liberty."
Mordechai Kremnitzer, vice president of research at the Israel Democracy Institute,
continued by outlining three obligatory requisites to defeating terrorism: international cooperation, learning from successes and failures, and a proper balance between efficiency and rule of law/democracy. The task force was focusing on detention and the use of force. Should reaching a consensus on those issues be impossible, he assured the audience, at least a dialogue will be fostered.
Matthew Waxman, associate professor at Columbia Law School and former U.S. government official, drew on his own experience in dealing with questions of security. He noted that American lawmakers have something to gain from looking abroad on these issues, not for the sake of borrowing specific statutes, but to see more generally what lessons other countries have learned when it comes to detention. Waxman echoed Sieber's interest in "common values" that democracies have an interest in protecting, and he urged a "harmonization" of legal approaches to detention. When it comes to detention, he said, agreement on legal standards would facilitate cooperation in military support, intelligence sharing and other efforts.
Waxman then addressed some of the challenges associated with using "law of war" provisions in connection with detention of terrorism suspects. Traditional law of war, he said, is difficult to adapt to a conflict without boundaries or clearly identified combatants, such as the struggle against terrorism.
The use of secret evidence to incriminate terrorists poses many challenges to democratic legal structures, according to Kent Roach, professor of law at the University of Toronto. Discussing the use of secret evidence today and its implications on just trials, he focused on the Canadian and British systems, which rely on "special advocates" in cases with secret evidence. Under this model, specially trained and cleared advocates are made available to review secret evidence. The program has proven mostly successful in Canada, Roach noted, but it has garnered some criticism in the UK because advocates are not allowed to communicate with detainees after seeing secret evidence.
Amos Guiora, professor of law at the University of Utah College of Law, provided a defense for what he regarded as one of the most important questions today: "When is intelligence information actionable?" To answer this question, four things must be considered: the proven reliability of the informant, the plausibility/timeliness of the information, relevance, and corroborability. "In order for detention to be grounded in reality,," he maintained, "we have to be sure that the intelligence that would serve as the basis of it meets this four-part test."
Questions from the audience addressed the suppression of personal freedoms and the extent to which there even needs to be a "war" on terrorism. Seiber expressed concern about "false positives" that can lead to wrongful detention, while Waxman described the difficulties in defining so-called enemies. The best way to prevent and combat terrorism, the panelists agreed, was through an approach grounded in the rule of law.
By: Wesley Michael Milillo
Sonya Michel, Director, United States Studies
- Senior Scholar
- Professor of Law, University of Utah College of Law
- Director, Max Planck Institute for Foreign and International Criminal Law
- Vice President of Research, Israel Democracy Institute
- Professor of Law, University of Toronto