Session 7:  Civil Liberties and Terror
Chair: John Janzekovic


The Criminalization of Speech in the Age of Terror: Casting a Wide net for Evildoers
Shawn Marie Boyne
Max Planck Institute for Foreign and International Criminal Law, Germany

            “Terrorism is what the bad guys do.”  
                                                                                    Brian Michael Jenkins
The Study of Terrorism

Although democratic states enacted legislation prior to 9/11 that criminalized membership in a terrorist organization, unsurprisingly, in the politicized environment that followed the 9/11 attacks, both the United States as well as EU member states have expanded the number of organizations that qualify as terrorist organizations. While the process of labeling some organizations as terrorist organizations is in itself contentious, government actions that seek to inhibit individual freedom of expression also pose an even stronger threat to the role that free speech plays in democratic societies.
Under the guise of targeting individual actions that provide support for terrorist organizations, governments have attempted to increasingly criminalize a broad spectrum of behavior. It is unsurprising that law enforcement agencies in the U.S. have aggressively stretched these definitional boundaries given President Bush’s decision to label terrorists as “evil-doers” and classify individuals engaged in political dissent as terrorists. Despite the existence of the ECHR which explicitly guarantees the right to freedom of expression, European governments have also increasingly sought to broadly punish speech and dissent under the guise of fighting terrorism or organized crime.
This work-in-progress examines the inherent tension between providing law enforcement with the tools to prevent terrorist attacks and protecting critical civil liberties such as the rights to free speech, dissent, and association. Specifically, the paper examines how judicial institutions in Europe are drawing the boundary between actions that qualify as mere speech and those that qualify as criminal actions.
By exploring several European court cases, the paper attempts to address the question of whether or not the current nature of the terrorist organizations and activities justifies the recent attempts by European governments to curb the freedom of expression. This paper examines the tension between those policies and human rights.

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Civil Liberty v Collective Security
Francine Baker
Open University and Wolfson College, Oxford, United Kingdom

‘Fundamental rights must be protected if we are to preserve our democracies but given the current threat to our national security we have to be flexible about how we achieve this.’ (UK Attorney General Lord Goldsmith 10/05/07).
This paper will examine the UK court’s approach to the protection of 'the physical liberty of the person'. The latter notion is central to an interpretation of Article 5 of the European Convention on Human Rights (ECHR). I will discuss the House of Lords judgement in R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, 13, where the police detention of a coach of peaceful protesters against the Iraq war for two and a half hours was held unlawful and in breach of articles 5, 10 and 11 of the ECHR.  It was held that the police's power to arrest required a reasonable basis for the belief that violence would occur imminently. This is consistent with settled US Supreme Court jurisprudence, though arguably not with the continuing detention of those in Guantanamo Bay.  Concerning the UK government’s anti-terrorist policy, I will discuss the court’s interpretation of ‘the physical liberty of the person’ in the context of the controversial issue of ‘control orders’ under the UK’s Prevention from Terrorism Act 2005 and Secretary of State for the Home Department v. JJ and Others [2006] 3 W.L.R. 866 concerning the question of their compatibility with Article 5 ECHR. I will argue that the scope of  control orders has been greatly reduced by the UK courts interpretation of 'the liberty of the person'. In summary, this is a backward step for the implementation of the UK government's anti-terrorism policy. I conclude that the government needs to devise a just and proportionate response to the threat of terrorism, that the judiciary can accept.

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Evil, Law, and State Surveillance
Susan Herman
Brooklyn Law School, Brooklyn, NY, USA

The United States has been struggling with the question of when the government should be permitted to conduct surveillance of interpersonal communications in order to prevent incidents of terrorism, one form of evil.   The issue is generally framed as requiring balancing the need for security against the very different forms of evil generated by state surveillance, usually described as a loss of individual privacy.   This paper will discuss how and why privacy has been losing this battle, and will comment on 1) the extent to which individual expectations of privacy have become quixotic or anachronistic, and 2) how to assess the actual costs of condoning a surveillance state.  

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State Sponsorship of Evil: The Role of Covert Operations
Abraham Wagner
School of International and Public Affairs, Columbia University, USA

For over two centuries the Unites States has prided itself on beacon for liberty and justice throughout the world, seeking to advance the plight of its own citizens as well as that of other nations in less fortunate circumstances.  These noble ambitions have taken various forms, including political and economic assistance, military aid, and from time to time direct intervention by military and other forces.  Increasingly however, U.S. and allied intervention in foreign states has involved covert operations, conducted by state intelligence services and supporting special operations forces, that are far less noble in their implementation, and in a number of cases result in truly “evil” actions.
Exposes and investigations since the 1970’s at least have brought several of these cases to light.  More recent actions by the U.S. conducted in the name of the “Global War on Terror” raise serious moral, ethical and legal issues as to whether such actions and operations directed against perceived evil are in fact state sponsored evil themselves.  Clearly there is a dilemma for the U.S. and its allies.  While the number of terrorists and terrorist organizations has escalated worldwide, the nature of their operations and the infrastructure supporting them have changed dramatically as well.  Effectively countering modern terrorist operations poses a significant challenge, since in many cases this infrastructure has evolved far more rapidly than the capabilities needed to counter them effectively.  Covert operations and new technologies are needed to counter transnational terrorist operations in the key areas.  Given the nature of modern transnational terrorist infrastructure, as terrorists have become more sophisticated in their operations, demands for counter-terrorist operations and new technologies have escalated as well.
This paper reviews the current state of transnational terrorism and covert operations being employed to counter this threat, focused on the extent to which these activities constitute state sponsorship of “evil” as well as the evolving legal regime in which they have been employed.  Here it explores the challenges posed for the U.S. counter-terrorist operations and suggests areas where these operations have not met the U.S. objectives in being a beacon of democratic and moral light throughout the world.