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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Serie: History of Violence
- Sprache: Englisch
In the decades following the 9/11 attacks, complex webs of anti-terrorism laws have come into play across the world, promising to protect ordinary citizens from bombings, hijackings and other forms of mass violence. But are we really any safer? Has freedom been secured by active deployment of state power, or fatally undermined?
In this groundbreaking new book, Conor Gearty unpacks the history of global anti-terrorism law, explaining not only how these regulations came about, but also the untold damage they have wrought upon freedom and human rights. Ranging from the age of colonialism to the Cold War, through the perennial crises in the Middle East to the exponential growth of terrorism discourse compressed into the first two decades of the 21st century, the coercion these laws embody is here to stay. The ‘War on Terror’ was something that colonial and neo-colonial liberal democracies had always been doing—and something that is not going away. Anti-terrorism law no longer requires terrorism to survive.
Wide-ranging, elegant and with a perceptive analytical sting, this book is essential reading for anyone seeking to understand the deep origins of terrorism and counter-terrorism, and how these concepts fundamentally shape the world we live in.
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Seitenzahl: 546
Veröffentlichungsjahr: 2024
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CONTENTS
Cover
Table of Contents
Title Page
Copyright
Dedication
Acknowledgements
Introduction: Home and Away
Liberalism and political violence
Law and the study of (counter-)terrorism
Security versus liberty
Explaining anti-terrorism law
Notes
Part One: Roots
1 Imperium
Origins
Homeland
Plunder
Resistance
Legalization
Notes
2 Cold War
Anarchist beginnings
The Red Scare
Imperial legacies
Strategies of provocation
The urban guerrilla comes to Europe
Conclusion
Notes
3 Uncertain Homelands
Liberation
Home or away?
Recurring patterns of state reaction: Northern Ireland 1968–98
The failure of the colonial analogy
Conclusion
Notes
4 Terrorism Goes Global: The Case of Palestine
Introduction
Rival sovereignties
Terror
The arrival of ‘international terrorism’
The emergence of anti-terrorism law
Notes
5 Fear of the Other: The Rise of Jihadism
Prelude
The ‘new’ terrorism
War of civilizations
The arrival of article 51
The rise of Al-Qaeda
Notes
Part Two: Spread
6 The War on Terror
11 September 2001
Self-defence
Detention
Conclusion
Notes
7 The United Nations
Defining terrorism
The Security Council steps in
Human rights legacies
The UN Rapporteur on counter-terrorism and human rights
Conclusion
Notes
8 UN Blacklists
Introduction: The 1267 regime
The Kadi revolution
Conclusion
Notes
9 Liberal Fightback?
Reasserting the rule of law
Indefinite detention: Belmarsh and its consequences
Detention: Guantánamo
Security versus liberty
Conclusion
Notes
Conclusion: Depth Charges
Notes
Index
End User License Agreement
Guide
Cover
Table of Contents
Title Page
Copyright
Dedication
Acknowledgements
Introduction: Home and Away
Begin Reading
Conclusion: Depth Charges
Index
End User License Agreement
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HOMELAND INSECURITY
The Rise and Rise of Global Anti-Terrorism Law
Conor Gearty
polity
Copyright © Conor Gearty 2024
The right of Conor Gearty to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2024 by Polity Press
Polity Press65 Bridge StreetCambridge CB2 1UR, UK
Polity Press111 River StreetHoboken, NJ 07030, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-5372-3
A catalogue record for this book is available from the British Library.
Library of Congress Control Number: 2023952140
The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website: politybooks.com
Dedication
To Aoife, with love
Acknowledgements
This book has grown out of my engagement over many years with the subjects of terrorism, anti-terrorism law, human rights and civil liberties. Generations of students in my law and terrorism courses at King’s College London and later the London School of Economics have kept me on my toes intellectually. Those who attended workshops on a draft of this book at Queen’s University Belfast and at my own academic home LSE’s Law School helped me to focus the argument at a critical time: I am very grateful to Richard English and Kieron McEvoy for arranging the first, and to my Law School Dean David Kershaw for encouraging me to hold the second. I am thankful to all those who made the time to come to these events, and especially to Fatima Ahdash, Diamond Ashiagbor, Michelle Hughes, Richard Martin and Ntina Tzouvalu for their prepared comments on specific chapters at the LSE event. Neil Duxbury read the whole manuscript from start to finish and made a range of suggestions which were immensely helpful. Aoife Nolan brought her superb editorial gaze to bear at critical moments in the book’s evolution and eventual finalization. My editors at Polity, first Pascal Porcheron and later Julia Davies, have been supportive throughout, and the anonymous readers who reviewed first the proposal and then the book itself have improved it in many important ways. Polity’s whole production team have been a delight to work with. It remains my book, and the mistakes are all mine, but there would have been more and the book would have been much less than it is without the generous assistance of all those mentioned above, as well as the countless others who have in various ways (often without their – or even me – knowing it) helped me to think through the subject in the way that you see laid out before you in this volume.
Introduction: Home and Away
Liberalism and political violence
In 1891, the Swiss authorities wanted the United Kingdom to send an anarchist revolutionary back to their jurisdiction for trial. Angelo Castioni had shot and killed a member of the Swiss state council while attacking an arsenal and municipal palace in one of the country’s governing units (cantons). Three judges (Denman J., Hawkins J. and Stephen J.) refused to order his return.1 Far from going against him, it was the political nature of Castioni’s violent act that rendered him safe from extradition. The relevant British law, passed in 1870, had specifically excluded such conduct from its reach.2 In those days in Britain, a high level of foreign-based political violence was tolerated, protected even where it occurred outside the UK’s jurisdiction and ‘in the course of a struggle for power between two parties in a State’.3 As Mr Justice Hawkins observed, ‘one cannot look too hardly and weigh in golden scales the acts of men hot in their political excitement’.4 For his part, Stephen J. observed that ‘the shooting on this occasion took place in a scene of very great tumult, at a moment when, if a man decided to use deadly violence, he had very little time to consider what was happening and to see what he ought to do, and that, therefore, he was committing an act greatly to be regretted’5 – but not sufficiently regrettable as to deprive him of his protection from extradition.
It is hard to imagine a judge saying the same about a political killing today. Now people like Castioni would not have a chance; actions similar to his are excoriated as beyond the bounds of morality wherever they occur, a disease to be rooted out of our liberal body politic at all costs and regardless of motive, context or location. Of course, the contemporary political subversive has a far wider range of destructive tools at their disposal (and a greater capacity to wreak harm), than ever the likes of Castioni had. There may very well be several good reasons for why the contemporary ‘terrorist’ is treated differently, and we shall come to these in the course of this book. The political defence against extradition has, however, clearly faded away,6 and, with it, its Victorian assumptions about liberty and freedom for the foreign fighter.
Even mere plotting against transparently pernicious regimes abroad now potentially attracts the hostile attention of local prosecutors. In one recent case in Britain, a person found to have been planning a violent revolt against Colonel Gaddafi in Libya could not rely on the purity of their ambitions: ‘There is no exemption from criminal liability for terrorist activities which are motivated or said to be morally justified by the alleged nobility of the terrorist cause.’7 For this English Court of Appeal, giving judgment in 2007, ‘terrorism [was] an international modern scourge’,8 and so, while ‘the call of resistance to tyranny and invasion evokes an echoing response down the ages’,9 there was ‘nothing in the legislation’ on terrorism which ‘might support [the] distinction’ argued for by the accused between resisting democratic states (wrong) and fighting authoritarian states (not wrong).10 This new moralism does not stop at individuals who have engaged in or planned acts of violence: even if they do nothing themselves, members of ‘terrorist groups’ risk punishment by reason of their affiliation.11 And anti-terrorism laws not only collude in the removal of people like Castioni into the hands of their enemies − they reach into domestic subversion as well, playing havoc with civil liberties and personal freedom under cover of a promiscuously defined national security.
In this book, I explore how this change in sentiment has come about and the effect it has had on our system of laws – indeed, on our liberal political culture as a whole.12 The ‘our’ here reaches beyond the United Kingdom to encompass Europe, North America and democracies across the world. With the attacks of 11 September 2001 (‘9/11’), the subject of ‘terrorism’ seems to have (literally and metaphorically) exploded onto the scene, with scores of violent disputes with power around the world (some justified, some not) being repackaged as part of a global movement of disorder rather than being seen as the discrete, locally based challenges to authority that they usually are. The world is this book’s stage, albeit the driving force behind the changes in the law that it describes has been European and American in origin. The field of anti-terrorism law now extends beyond democratic borders to the wider world, where despots everywhere welcome it with open arms. The laws that these concerns about terrorism have generated are important, and their impact on civil liberties severe. I look at these legislative and executive acts (international, regional and national) closely, arguing that they have fundamentally affected the shape of our democratic culture, and that they are here to stay whether or not terrorist atrocity remains as a central source of anxiety.
Law and the study of (counter-)terrorism
I began this book thinking I was writing a book about the history of terrorism. I had done something similar over thirty years ago,13 and it nagged me that I had never built properly on that early book with later editions in order to have a more consistent engagement in the field. I soon realized that any such project was a futile endeavour in the here and now. What had struck me as original in 1991 now seemed passé. New work had emerged, much of it original and critical in a way that made anything I might now want to say seem to be verging on the superfluous. More to the point, I had become too much of a lawyer in the decades since I had unwittingly engaged in what I now knew to have been an interdisciplinary endeavour, mixing history, international relations and politics with (just a dash of) law.
So I thought ‘why not turn my disciplinary commitment into a strength?’ This book on the rise and rise of anti-terrorism law is the result. There are many excellent treatises on the law of terrorism (international and national),14 and important books too on the history of and policies behind counter-terrorism.15 But few of the general treatments of the subject, no matter how compendious, have specific sections or chapters devoted to anti-terrorism law as such.16 My particular interest here has led me to focus on the development of such laws rather than on their current substance − less a snapshot of the present than a reflection on how we got where we are today.
But this then created a further difficulty: what causes this or that particular law to be enacted is often a question requiring answers that go beyond law. This has particularly been the case with anti-terrorism law. The field encompassing this brand of law is no product of careful academic study or a law commission enquiry into this or that lacunae in the legislative status quo; it has been hurled onto the statute book by the waves of political, diplomatic and international energy that have already done so much to determine its shape before it arrives. Much of Part One of this book, on the origins of anti-terrorism law, is therefore light on legal detail − slightly disconcertingly perhaps, but in the circumstances of this branch of law I think inevitable. The law comes into its own when the subject of terrorism itself does: in the aftermath of the attacks on New York and the Pentagon on 11 September 2001.
Where does this volume fit in intellectual terms? There are deliberate echoes of Boukalas’s work in my choice of title,17 and I have found that author’s well-argued disinclination to follow certain well-established politico-legal philosophers in this area to be very persuasive.18 At very least my book is a contribution to the necessary ‘historicisation of terrorism’ that has been evident in recent years.19 As my LSE colleague Audrey Alejandro and my research student (now Dr) Mattia Pinto wrote when considering Foucault’s impact on the law: ‘the construction of legal categories is an important vehicle for producing legal meanings’.20 This is what I think this book is mainly doing: constructing a genealogy of a particularly important legal term (‘terrorism’) and as a result of doing so submitting the origins and growth of anti-terrorism law (its main focus) to close examination. As Charlotte Heath-Kelly has noted, ‘[t]hreats and crises are socially constructed, not objective realties’,21 and anti-terrorism law and practice have become the bridge between the construction of terrorism as a security crisis and its manifestation on the ground. My book fits within the literature as a contribution from a lawyer to the critical terrorism studies movement that has done so much to energize the field.22
Security versus liberty
Despite their immense power as a driver of what followed, the attacks of 11 September are not the start of our story. To get to the bottom of our subject, to understand how it has emerged and enjoyed the kind of success that I am describing here, we need to go behind that pivotal event. We need in particular to understand the political-cultural environment in which the post-9/11 laws have come to be enacted.23 Many of those laws are self-evidently repressive. Of course, there are obvious answers, rooted in the public nature of the violence wrought by subversive political actors, the disregard by such ‘terrorists’ of innocent bystanders, the arbitrariness of their actions, their lack of material self-interest – in sum, the immorality and incomprehensibility of their conduct.
But nagging doubts surely remain. How has a polity that loudly protests its commitment to freedom and equality (as liberal democracies invariably do) ended up so easily accommodating anti-terrorism laws and practices that – with their wide-ranging police powers, their acceptance of surveillance, their openness to extra-legal or barely legal actions like torture and assassination, their extended pre-trial detention, their discriminatory impact and much else – so obviously mock this stated commitment? What is it about the way that liberal democracy views the world that makes such a blatant double standard – we are a free society; we embrace coercive anti-terrorism laws – possible? How can freedom seem to be secured rather than fatally undermined by these active displays of state power? Or, to put the same point into the form of a different set of questions: How have illiberal anti-terrorism laws come to be so successful in a democratic culture which is supposedly devoted to individual freedom and civil liberties? Why has the ‘global war on terror’ met with so little resistance from democratic states? Why has that ‘war’ been so (relatively speaking) easy to justify, generating little pushback and surviving well past the original crisis which gave rise to it? We need to be able to answer these various questions in order to make sense of the origins and operation of the laws that we are about to examine, and to appreciate fully the changes they have wrought in how we understand ourselves and the political world in which we live.
There is an underbelly to liberal society that has always emphasized security rather than liberty, with some asserting that even efforts to balance the two are just part of liberal mythology.24 This is where our subject feels at home. This book identifies the critical period for the growth of our anti-terrorism legal culture as being from 1968 until about 1983: a time of radical-Left violence in Europe and the United States, nationalist struggle in Spain, Ireland and elsewhere, and above all a period during which the militant determination of the Palestinian movement to resist Israeli power was at its highest. Without question, there were legitimate fears generated by these various arenas of political violence during this period, especially when concerns about ‘Islamist extremism’ could be added into the mix after 1979. Proponents of anti-terrorism laws did not make up the bombs, the kidnappings, the hijackings, the hostage-taking, the assassinations that afflicted democratic society during these years. The violence was nasty, theatrical and scary, terrifyingly capable of striking at the most normal of times in the most normal of places. But from a Western point of view – and quite unlike the impact of political violence on the Palestinian people, or the violence wrought on their citizens by the South American military leaders of the 1960s, or by US forces in Vietnam or Cambodia, or any other government for that matter with the capacity and inclination to kill its political opponents – there was hardly any of it. The chances of being caught up in a terrorist incident in the West have always been vanishingly small, even when terrorism has been at its supposed height. Despite this, the West allowed itself over the course of this period to become convinced that its way of life was being fundamentally threatened, and so felt obliged to mount the fierce legal fightback anticipated above and detailed in the pages that follow, a fightback which, after the end of the Cold War and the events of 9/11, has had long-term implications for the freedom that is enjoyed in our liberal democratic culture.
Explaining anti-terrorism law
How did all this happen? The book suggests two explanations for the successful embedding of anti-terrorism law in liberal democracy’s collective mind-set, both going beyond the narrative just laid out. The first, and the deepest, draws on the West’s experience as a colonial power. In the next chapter, I argue that the coercive response that was routinely deployed against local resistance to the rule of its various empires familiarized European liberal and later democratic culture as a whole with the idea that freedom could co-exist with (perhaps even needed) swingeing anti-subversive laws. Indeed, many of these laws were characterized even at the time as ‘anti-terrorism’ initiatives (among, it is true, other labels). It is worth recalling at this juncture that the image of empire is no long-lost memory beyond any living person’s recall but rather continued via persistent French and (mainly) British control of overseas territories until well into the second half of the twentieth century (and in authoritarian Portugal into the 1970s).
Then, just as empire waned and sovereign nationhood became the new norm of international relations, a fresh reorganization of world power took place, organized this time along lines that pitted the great victors of the Second World War against each other, in an apparent fight to the death between communist and capitalist ways of looking at the world. This ‘Cold War’ is the second of our deep explanations for the hold that ‘terrorism’ has achieved on the world, and is the focal point of Chapter 2. Overlapping with the last years of colonialism, the Cold War generated large incentives for Western culture (an active United States as well as a tiring Western Europe) to support those post-colonial states that – choosing the American side – were inclined to deploy their inherited anti-subversive laws to destroy their radical domestic opponents, particularly (but not exclusively) those who threatened revolutionary change from within and who were not afraid to contemplate violence as a route to the achievement of their aims. As with its exercise of colonial power, the liberal West has had plenty of practice countering radical dissent within its own borders, usually anti-capitalist/socialist in character, and often in purported support of the very values (free speech, the rule of law, human rights, etc.) that such state coercion appeared to contradict.
The laws on anti-terrorism that we see today are descendants of the democratic common sense that was created by these two grand twentieth-century movements: the idea, first, that anti-insurgency laws are a way of retaining colonial possessions that, since it does not involve a challenge to domestic (colonizer) democratic values, over time comes to be treated as ordinary, or at least not exceptional. And, second, that any liberal democratic society (European, American, post-colonial) is perfectly entitled − indeed obliged − to use what powers it has at its disposal to protect what it claims is its democratic culture from radical change, from within or without, or (as indeed was often the case during the Cold War) from both at once acting in subversive combination. These two historical factors offer an explanation as to why the door was open to an anti-terrorism trope in the late 1960s and beyond: democratic society was much more used to this kind of law than it understood or assumed, so inured to gliding over contradictions in the application of its values on the ground that it could replace one set of contradictions with another without even noticing what it was doing.
This context might satisfactorily explain the openness of liberal society to an anti-terrorism turn, but it does not tell us exactly how it came about, or why it took the shape that it did. We know that after the attacks of 9/11, President Bush felt confident in the knowledge that people would understand his talk of an ‘axis of evil’ and a ‘crusade’ against global terrorism. The UK prime minister Tony Blair even used the word ‘existential’ to describe the threat both men saw as being posed by those who had masterminded the attacks. How had the fear of global terrorism thrown down such deep roots and been able to thrive as it did?25 The soil may have been prepared by the underlying colonial and Cold War narratives, but that is not a sufficient explanation of the global dimension to what followed. I address this core point in Chapters 4, 5 and 6.
The first of these chapters concerns the efforts, briefly alluded to earlier, being made by sub-nationalist movements in Western Europe and North America to assert their freedom, against both authoritarian polities (the Basque group ETA in Franco’s Spain) and democratic states (the IRA in the UK, the FLQ in Canada, and many others). Together with the radical ideologies engaged in political violence in Western Europe at the same time (the Red Army Faction, the Red Brigades and so on, discussed as part of the Cold War struggle in Chapter 2), these groups and their activities were important paving stones on the road that took democracies far away from tacit acceptance of subversive political violence abroad (epitomized by the Castioni case) and liberal acceptance that its proponents at home were entitled to traditional fair treatment. Colonial anti-insurgency violence had, of course, always been present abroad. But when such insurgency began showing up at home as well, threatening not just the colonial but the domestic political order – and doing so not in faraway places but right there in the state’s own front yard – a more direct response could not be avoided. It became acceptable (essential even) to destroy such challenges to domestic authority, and through a use of force that felt right both to those who deployed it and to the democratic citizenry that now could not help but see it happening, right there in front of them, and so needed satisfactory explanations rather than simple denial. When we examine these various movements in Chapter 3, we will see how each in their different way stimulated coercive legislative responses, increasingly deployed in the late 1960s and taking clearer shape in the early 1970s in the language of terrorism. Domestic adherence to the rule of law remained strong, but in all of these domestic agitations (those recounted in Chapter 2 as well as Chapter 3) it was put under immense strain and sometimes collapsed completely.
Neither the radical Left’s aspiring revolutionaries of the Cold War nor the ‘pseudo-colonials’26 within constitutional democracies were, however, the main event. The immediate cause of the upsurge of the ‘global terrorist’ phenomenon during this critical early phase 1968–74 was rooted in the Middle East. In Chapter 4, I explore the habit of mind that simmered up in Western culture from the late 1960s onwards: that of seeing Palestinian resistance as more than something in itself, as a manifestation of a global problem rather than a reaction to local oppression, a challenge to civilized living as a whole rather than a parochial crisis. It is clear that this way of thinking could not have happened through Palestine alone, however dramatic and international the violence of its defenders occasionally was. The occurrence of analogous violence elsewhere helped the framing, bringing things (as it were) to the boil. I see the Palestinian violence of 1968–74 as central, as the supplier of the core materials on the road to ‘global terrorism’, and therefore as a generator of the necessity for a set of generalized anti-terrorism responses, both policy-oriented and legal, that went beyond whatever were the local concerns of this or that democratic state. This anti-terrorism drive also went beyond law; indeed, in this early phase it was often uninterested in the law as a focus of counter-terrorist activity. It was during this time that efforts by various Palestinian factions loosely (and in some cases directly) affiliated with the mainstream Palestinian movement the Palestine Liberation Organization (PLO) were successfully redescribed by their opponents (principally the Israeli state and its supporters in the United States) in terms that no longer acknowledged their conventional status as freedom fighters in search of national self-determination, instead recasting them as key operatives in a terrorist war whose target was not only an ‘occupier’ Israel but Western civilization as a whole.
To this narrative thrust, already quite successful in terms of painting Palestinian resistance as an existential challenge to the democratic West, was then added an additional ingredient in the late 1970s/early 1980s: the risk to Western culture and freedom of thought posed by Islamist militancy. Here is the subject of Chapter 5, the final offering in our section on the roots of modern anti-terrorism law. Bubbling under the surface in the 1970s as a component of Palestinian resistance, this new threat came into its own after the 1979 overthrow of the regime of Mohammad Reza Pahlavi, the last Persian monarch, and his government’s replacement the same year by a proudly named Islamic Republic of Iran. Led by the radical cleric Ayatollah Khomeini, Iran directly defied Western power, holding US diplomats and other American citizens hostage in Tehran for over fourteen months in 1979–81, and equipping military elements in Lebanon to resist Israeli incursions into its northern neighbour (where the Palestinian resistance had a presence irritating to its powerful antagonist). The US and French military engagement in Lebanon that followed the invasion of that country by Israel in 1982 was seen off a year later by Iran’s proxy in the region, Hezbollah, whose two trucks loaded with bombs and driven with force at American and French military barracks killed 307 people in October 1983, the great majority of them US marines. With this dramatic and successful deployment of the ‘suicide bomber’, the embedding of this kind of violence as part of a global problem of terror was well and truly launched.
The ‘invention of terrorism’27 that I have just briefly described is what provided the initial stimulus for the array of anti-terrorism laws that are the primary focus of this book. A central point in what follows is that these laws did not suddenly spring from nowhere as solutions to specific problems that national policy experts, legislators and law enforcement personnel had independently concluded were needed. The world of problems they inhabited had been framed for them by powerful and influential actors in the field of international relations, actors who had been methodically driving their own agendas under cover of discourses ostensibly rooted in global ethics and civilizational struggle, and who in doing so were able to avail themselves of pre-set (and invariably supportive) colonial and Cold War narratives. In the second part of this book, I turn to the uncontrolled proliferation in law and administrative practice of the language of terrorism in the aftermath of the extraordinary attacks by Al-Qaeda on the United States on 11 September 2001.
Here I track the debilitating impact on national law (Chapter 6) and international law (Chapters 8 and 9) of the routinization of anti-terrorism law that has occurred since those attacks, and show how what was once a recherché piece of positioning by a few states with an interest in the matter has become a global free-for-all, with governments everywhere uniting in a dismal shared effort to cast many (and, in some authoritarian states, all) of their political opponents as ‘terrorist’ and thus creatures beyond the pale of political discourse. While the active engagement of more authentic liberal discourses, such as those rooted in respect for human rights and the rule of law (discussed in Chapter 9) have done good work in modifying the immediate excesses of anti-terrorism law, their very success has – depressingly – served only to embed these laws further in our democratic and legal vocabulary.
My bleak concluding chapter suggests that the point has now been reached where anti-terrorism law has made substantial and seemingly permanent inroads into what we used routinely to believe a democratic polity absolutely required by way of democracy and respect for human rights. I go so far as to say that anti-terrorism law no longer needs terrorism to survive: it has altogether successfully outgrown its rationale, expanding into an irrepressible bureaucracy of state power. This is where I tackle directly a point that appears obliquely throughout: the uncomfortable connection between terrorism and constructions of racial difference, the latter being a habit learnt in colonial times that has proved near-impossible to shed. Writing about migration law recently, Nadine El-Enany said of her subject that ‘[u]nderstanding migration law as a racial regime of power, as part of a colonial edifice, allows us to see the danger of accepting legal categories as given’.28 I feel the same about our anti-terrorism laws.
In its deconstruction of how such an approach has been successfully embedded, this book also complements (while having a different focus) the work of Ntina Tzouvala, whose powerful critique of recent anti-terrorism laws draws strength from her understanding of a wider political economy that demands the delivery of profit to certain corporate actors whatever the wider cost.29 There is no doubt in my mind that Tzouvala’s argument explains the alacrity with which commercial actors in the US and Britain, and indeed further afield, grabbed their post-9/11 anti-terrorism moment, and why leading this charge were the various experts, consultants and developers of this or that piece of anti-terrorism kit that stood to make substantial financial gains from the stampede for new tools with which to protect their various homelands. To accept this is not however to diminish the influence of political leaders intent on using anti-terrorism to secure their own political interests (corporate, of course, but not exclusively so). The operation of both drivers at the same time has made the ‘global war on terrorism’ well-nigh impossible to resist.
In its essence, one could say that this book is about how liberal democracy first embraced, then slightly tamed and finally learnt to live with the ‘war on terror’.
It was tempting to believe, writing in the early autumn of 2023, that we were coming to the end of the era of terrorism even if not of counter-terrorism laws. The invasion of Ukraine by Russia in early 2022 had reminded people of what real conflict looks like. With an ever-more assertive Russia and China and a sharp increase in conflicts in and near Europe itself (such as in Nagorno-Karabakh), it appeared that war was back for the West, supplanting our anxieties about less all-embracing forms of political violence.30 But then apparently out-of-the-blue came the attacks on 7 October by Hamas in southern Israel and the brutal counter-terrorism reaction that these provoked on the part of the country affected. It is clear that the attention grabbed by terrorism as a world problem has dismal mileage left in it, its impact in terms of laws and the debilitation of freedom remaining as powerful as ever. The book’s subtitle is ‘rise and rise’, not ‘rise and fall’.
Notes
1.
Re Castioni
[1891] 1 QB 149.
2.
Extradition Act 1870 s 3(1).
3.
V.E. Hartley Booth,
British Extradition Law and Procedure
(Alphen ann den Rijn: Sijthoff and Noordhoff, 1980), vol. 1, p. 79.
4.
Re Castioni
[1891] 1 QB 167.
5.
Ibid., p. 168.
6.
In the United Kingdom the Suppression of Terrorism Act 1978 and the Extradition Act 2003.
7.
R v F
[2007] EWCA Crim 243, [2007] QB 960 (Judge P; Forbes, Irwin JJ) para 32.
8.
Ibid., para 7.
9.
Ibid., para 9.
10.
Ibid., para 26.
11.
Through belonging to organizations that are proscribed under anti-terrorism law, a common feature of contemporary legal systems, as we shall see.
12.
Note that residual constitutional rights to overthrow a government are still to be found in many constitutions worldwide: Tom Ginsburg, Daniel Lansberg-Rodriguez and Mila Versteeg, ‘When to Overthrow Your Government: The Right to Resist in the World’s Constitutions’ (2013) 60
University of California Law Review
1184–1260. The fairly minimal operation of these clauses is not something I probe in what follows.
13.
Conor Gearty,
Terror
(London: Faber and Faber, 1991).
14.
Fiona de Londras,
The Practice and Problems of Transnational Counter-Terrorism
(Cambridge: Cambridge University Press, 2022); Ben Saul (ed.),
Research Handbook on International Law and Terrorism
2nd edn (Cheltenham: Edward Elgar, 2020); Aniceto Masferer and Clive Walker (eds.),
Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State
(Cheltenham: Edward Elgar, 2013); Clive Walker (with Alex Carlile, Ken McDonald and David Omand),
Terrorism and the Law
(Oxford: Oxford University Press, 2011); Genevieve Lennon and Clive Walker (eds.),
Routledge Handbook of Law and Terrorism
(Abingdon: Routledge, 2015); Laura Donohue,
The Cost of Counterterrorism: Power, Politics, and Liberty
(Cambridge: Cambridge University Press, 2008); Andrew Lynch, Nicola Hensley McGarrity and George Williams (eds.),
Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11
(London: Routledge, 2010).
15.
See respectively Richard English,
Does Counter-Terrorism Work?
(Oxford: Oxford University Press, 2024) and Thomas Renard,
The Evolution of Counter-Terrorism since 9/11: Understanding the Paradigm Shift in Liberal Democracies
(Abingdon: Routledge, 2022).
16.
True even among the finest (Alex P. Schmid (ed.),
The Routledge Handbook of Terrorism Research
(Abingdon: Routledge, 2011)) and the most innovative (Richard Jackson, Marie Breen Smyth and Jeroen Gunning,
Critical Terrorism Studies: A New Research Agenda
(London: Routledge, 2009)) of the genre. For a snapshot of the vast increase in post-9/11 scholarship see Brian J. Phillips, ‘How Did 9/11 Affect Terrorism Research? Examining Articles and Authors, 1970–2019’ (2023) 35 (2)
Terrorism and Political Violence
409–432.
17.
Christos Boukalas,
Homeland Security, its Law and its State. A Design of Power for the 21st Century
(Abingdon: Routledge, 2014).
18.
Christos Boukalas, ‘No Exceptions: Authoritarian Statism. Agamben, Poulantzas and Homeland Security’ (2014) 7 (1)
Critical Studies on Terrorism
112–130.
19.
Michael Livesey, ‘Historicising “Terrorism”: How, and Why?’ (2021) 14 (4)
Critical Studies on Terrorism
474–478. See further Bart Schuurman ‘Topics in Terrorism Research: Reviewing Trends and Gaps, 2007–2016’ (2019) 12 (3)
Critical Studies on Terrorism
463–480.
20.
Audrey Alejandro and Mattia Pinto,
Law and Discourse; Law as Discourse
(unpublished; copy with author).
21.
Charlotte Heath-Kelly, ‘Critical Approaches to the Study of Terrorism’ in
The Oxford Handbook of Terrorism
(Oxford: Oxford University Press, 2019), 224–237, p. 229.
22.
Critical Terrorism Studies: A New Research Agenda
, n 16 above. Pathbreaking works included Stuart Croft,
Culture, Crisis and America’s War on Terror
(Cambridge: Cambridge University Press, 2006) and Richard Jackson,
Writing the War on Terrorism
(Manchester: Manchester University Press, 2005).
23.
My
Liberty and Security
(Cambridge: Polity Press, 2014) approached this subject in a way that highlighted the relationship between democracy and the false claims (rooted in the security imperative) of what I there called ‘neo-democracy’, but it did not delve into the origins of the language of terrorism and anti-terrorism, one of the central themes of this book.
24.
Mark Neocleous, ‘Security, Liberty and the Myth of Balance: Towards a Critique of Security Politics’ (2007) 6 (2)
Contemporary Political Theory
131–149.
25.
Jessica Wolfendale, ‘The Narrative of Terrorism as an Existential Threat’ in Richard Jackson (ed.),
Routledge Handbook of Critical Terrorism Studies
(Abingdon: Routledge, 2016), ch. 11.
26.
As I called these aspirant nationalist fighters in my book,
Terror
(London: Faber and Faber, 1991).
27.
Lisa Stampnitzky,
Disciplining Terror: How Experts Invented ‘Terrorism’
(Cambridge: Cambridge University Press, 2013).
28.
Nadine El-Enany,
(B)ordering Britain. Law, Race and Empire
(Manchester: Manchester University Press, 2020), p. 27.
29.
Ntina Tzouvalu, ‘The “Unwilling or Unable” Doctrine and the Political Economy of the War on Terror’ (2023) 14 (1)
Humanity
19–38. See also her
Capitalism as Civilization: A History of International Law
(Cambridge: Cambridge University Press, 2020).
30.
See Oliver Wainright, ‘“War is Back. People Want to Stock Up”: Inside Europe’s Biggest Arms Fair’,
Guardian
, 20 September 2023.
PART ONEROOTS
ONEImperium
Origins
The conventional way to start an historical account of terrorism is with various groups from the past that engaged in the sort of political violence that we would today recognize – and unhesitatingly describe – as ‘terrorism’. This usually involves some attention being paid to the Assassins, a fairly obscure Muslim sect who killed their opponents with daggers back in the twelfth century CE, and whose eponymous modus operandi gave a new word to the English language.1 Some scholars reach even further back to the Zealots, a Jewish group whose hostility to the Roman presence in Palestine during the first century CE manifested itself in violence, and whose provocations played no small part in the destruction of Jerusalem by imperial forces in 70 CE. Both supposed early paradigms of our contemporary terrorism problem have in them seductive aspects – violent Muslims, squabbles over Palestine – that resonate today and increase their appeal as suitable anticipators of where we are now.2 It is the same for the nineteenth-century anarchists, some of them eccentric rejoicers in their labelling as ‘terrorists’, whose violence tried to be ‘ethical’ but was nevertheless aimed at securing radical change from a position of intense political and (it goes without saying) military weakness – Castioni, the killer from Switzerland whom we met in the Introduction, may not have called himself a terrorist, but many similarly disposed activists did.3 A little earlier than the anarchists, the Paris of the period immediately after the French Revolution is also often irresistible to those in search of origins, the explicit use of the technique of terror by the leaders of France in 1793–94 being thought to be too good to miss.4 As this last kind of violence was deployed by the state, it was both horribly more efficient than and radically different from that achievable by mere subversion. But it is exactly such violence by the antagonists (rather than the wielders) of state power that is the key ingredient making up what is commonly understood as terrorism today (and which explains the widespread appeal to the contemporary scholar of the Zealots, the Assassins and the anarchists).
I have done exactly this kind of history in the past myself,5 but now believe that it gets our subject off to a false start, or rather (to mix the sporting metaphor) sends the runners down the wrong highways and byways of history, in search of illusionary connections that confuse more than they clarify. The element of the indefinable in terrorism seems to me to be unavoidable,6 the range of conduct being too varied for the groups in question all to be plausibly grouped together under this single label. This is especially so when it is done without regard either to time or place, or to whether this contemporary label mattered when such groups were active. Even excellent studies (like that by Joshua Tschantret7) risk a flattening of the explanatory power of systematic political violence by sweeping all of it into a singular category called ‘terrorist’, and then foregrounding technical explanations (modernity, weaponry, better opportunities for communication) at the expense of a nuanced understanding of the wider political picture (which might include colonial oppression in some cases, authoritarian excesses in others). The reification of violent subversion as abstractedly wrong carries the risk that we miss altogether (or else downplay or exculpate) the proactive and then reactive violence of the state actors against whom the violence has been deployed. This wider picture can often reveal state violence productive of high levels of terror in those subject to it (even if it is not called ‘terrorism’), and many of the states whose leaders resist ‘terrorism’ in the loudest possible manner are themselves often erected on exactly the kind of violence that they now all agree to abhor.
If it is neither ancient history nor an a priori supposition about the wrongness of all subversive violence everywhere, what is it that makes our current assumptions about ‘terrorist’ violence (and therefore the rightness of anti-terrorism law) so deeply rooted? Of course there was 9/11 and, in the preceding decades, various incidents of seemingly senseless civilian killings that we are surely right (both in context and as a plausible fact-specific moral generalization) to deplore and to deploy the law to counter: I discussed these events in general terms in the previous chapter, and will analyse them – and the reaction they provoked – in greater detail in later chapters.
For now though, we are concerned with the deeper origins of our subject, with how it has so successfully embedded itself in the way we think. This takes us to the first of the two informing influences of subversive political violence (today’s terrorism) that were anticipated at the end of the last chapter: our (Europe’s) colonial heritage. Looking back over the past 300 years or so, where do we find the clearest examples of the use of politically motivated violence by weak groups in opposition to the overwhelmingly superior force of a state whose authority they reject? In what arenas of power do we see such subversion condemned as utterly wrong, as beyond any capacity for exculpatory explanation, as often specifically declared to be terrorist? It is not with the anarchists or other analogous anti-despotic movements to which we have already made passing reference (and to which we will return, albeit briefly, in later chapters). The two questions posed as I have just posed them lead inevitably in each case to a clear answer: resistance to colonial control in response to the first; colonial narratives (as explanations for retaliatory violence) as the response to the second.
One of the central arguments in this book can now be baldly stated: the routine acceptance of anti-terrorism laws today is rooted in colonial power’s reaction to challenges to its authority, and in particular in how that reaction – often extremely violent though it was – was able to be plausibly packaged for colonial power’s domestic audiences as not inconsistent with (indeed as supported by) liberal values. Colonial violence has prepared us for the excesses of the ‘war on terror’, inured us to what our supposed values surely demand should be unthinkable.
Empire has not been an easy subject for those who concentrate on subversive violence. As current controversies about critical scholarship demonstrate, the subject of colonialism is painful for those among the citizens of the former colonial powers who treasure positive narratives about the power once wielded by their forebears, and for whom discussion of the causes of anti-colonial violence is to be avoided if at all possible. As Angela Woollacott has remarked of the grandest imperial project of all, ‘[t]his is not to suggest that the violence of empire has been completely expunged from historical memory in Britain. The evidence, particularly during moments of crisis, is simply too extensive to enable such forgetting. But … its visibility, like that of empire itself, is “a political artefact that has waxed and waned”.’8 What is at stake when it comes to empire, as Ann Stoler argues, is ‘a dismembering, a difficulty speaking, a difficulty generating a vocabulary that associates appropriate words and concepts with appropriate things’.9 As Deana Heath puts it, ‘[t]he violence of empire is rediscovered, according to Stoler, when it is deemed safe for public consumption and scholarly investigation’.10 It is not surprising that the violence of empire has not played a prominent part in anti-terrorism studies, but it deserves a central place in any discussion of the origin of anti-terrorism law. The time to do this may not yet be safe, but undeniably it is right.
The work of Nasser Hussain is valuable here, showing as it does the importance of law in the process of securing plausible explanations for imperial violence. Hussain details how, as early as the late-eighteenth-century ‘impeachment of colonial India’s first governor-general, Warren Hastings, … government by law was already becoming the privileged basis for the conceptualization of the “moral legitimacy” of British colonialism’.11 If legality was ‘the preeminent signifier of state legitimacy and of “civilization”’,12 then it was a legality that was always accompanied by insistence on executive power hinging on the force of arms. While the British in India ‘developed an elaborate and relatively strong judiciary, they equally insisted that certain “acts of state” would be beyond judicial inquiry’.13 It was martial law that served to close this gap between law and raw power, dignifying the latter with the moral aura of the former. The disguising of brute colonial force as law allowed the state to act with impunity without troubling the consciences of its imperial supporters at home. Right from the start the difference between imperial and counter-imperialist violence was clear: the first was law, the second banditry.
Homeland
Law needs an idea of jurisdiction in order to work properly. Locating this is less easy for countries whose influence reaches beyond their own borders than for those hunkered down in a domestic space assigned them by international law and practice. In the former cases, where exactly was home? Where was abroad? Truly foreign places for sure, but from an imperial UK perspective (for example) was India part of home, or was it abroad? The evolution of counter-terrorism laws, and particularly the rigour with which they have been applied by liberal polities, has historically depended on at whom exactly the subversive challenge to authority has been aimed, whether to power at home or to authority far away. Until recently (and this is the change this book tracks) the remote mattered little: the Castionis of this world could do their destructive foreign work and still live unhindered in the domestic liberal state, plotting further revolution for all the authorities cared. This was as long as, of course, they did not threaten that state as well. Domestic challenges to what is clearly the homeland (whether that of an empire or an ordinary liberal state) have always been taken particularly seriously, counting as dangerous internal subversion. For the colonial powers, the ‘home’ that needed to be secured was never simply where (to coin a phrase) the hearth is. Jurisdiction was asserted well beyond the four corners of the territorial state. There were uncertain homelands like Ireland (for Britain) and Algeria (for France), but the point goes further than these. Much of ‘abroad’ was not truly abroad so far as these imperial sovereign powers were concerned; rather ‘home’ extended to places that they treated as ‘possessions’, territories beyond the constitutional parameters of their state, but which were controlled by them and ruled in their interests. This domestic/colonial/foreign distinction is central to the argument in this book. For those European powers (and they were invariably European) engaged in colonial aggrandisement, there always was a ‘home-home’ but then also as well a ‘home-abroad’ – an India, say, or the multiple other parts of Asia controlled by the Netherlands or France. Places like Ireland and (later) Algeria were stuck in the middle, not quite home-home, but not home-abroad either.
When looking at how anti-terrorism laws operate both today and (whatever they were called) in the imperial past, it is impossible not to see how they are and were invariably deployed differently depending on the location of the subjects of their power. Such laws function against ‘the other’ – that is to say, those who present as different from loyal citizens of the relevant sovereign power. This ‘othering’ was a commonplace in the colonial period, when the recalcitrant subjects asserting freedom were by definition different from the citizens of the home country and remained so even when yoked into the imperial polity as a matter of law (Ireland and Algeria being two of the clearest examples of this), or (as in later eras) brought to the homeland to do necessary work. The terrorists of old were the mindless savages challenging the rightness of this or that imperial project. Today they continue to fester in post-colonial ‘safe-havens’ or are part of a post-imperial power’s local ‘suspect community’ – citizens perhaps, residents almost certainly, but not really, truly at home, not proper members of ‘our home’. The subjects of anti-terrorism law are always different because they are not truly us. This racist impulse is the beating heart of our story, the impetus that has made possible both the invention of terrorism in the first place and thereafter its careful sustenance in our laws. Of course, there have been recent efforts to broaden the reach of anti-terrorism law, just as there are other sources of the laws I am looking at in this book: we come to all this in later chapters. But looked at through this original lens, anti-terrorism law is how colonialism is done in the twenty-first century. It has grown out of the difference between us and them (civilized v savage; Christian v pagan; white v non-white) that was an essential feature of the imperial control exercised by the old European powers. Those who resisted colonial power were disrupters of this order, the nastier elements of ‘them’ organizing challenges to ‘our’ decent power.
We exist today with the ‘legacy of violence’14 bequeathed us by that extraordinarily all-encompassing system of power – of home-abroad – that can be plausibly described as ‘colonialism’. The national power that availed itself of its capacity to dominate the peoples of the globe on the largest scale was one that throughout the period of its domination saw itself as a liberal, free society: the United Kingdom. Whether or not Britain was truly the land of the free, it was able plausibly to present itself as such. But as Hussain has noted, even that pretence slipped so far as its colonial possessions were concerned. James Martel put it well when he observed that ‘the disguise of normal law that one found in Britain itself was not engaged with in the colonies in part because it was felt that the perceived need to be continuously violent in the face of the ongoing resistance of local populations trumped any desire to promote the appearance of an orderly legal apparatus’.15 It is through the approach of the British to the management of its empire that we find liberal democracy familiarizing itself with its capacity to think of itself as a free, open (and indeed good) society while being at the same time constituted by high levels of political violence against its opponents, whether in the home-abroad of the colonies or in the suspect home-home of Ireland. Where Britain led, other European countries followed, in later decades not allowing their own (gradual) democratization to interfere with continued dominion over their foreign fields. Britain’s management of its empire is especially important to our story because it was during the years of its greatest global influence (the first sixty years of the twentieth century) that the mechanisms of control we would today think of (and, as we shall see, were thought of even then) as ‘counter-terrorism’ were put in place. The trick lay in exploiting the ‘home-home’/’home-abroad’ distinction so as to insulate the former from the actions necessary to keep the latter under control. Or, as one of the brilliant recent scholars engaged in colonial-related terrorism studies put it, quoting another pathbreaker in the field: ‘the racialization of one’s opponents is central to liberal counterinsurgency, as this racial differentiation is what “resolves the tensions between illiberal methods and liberal discourse”’.16
Plunder
Richard Reid has noted that, ‘[i]n the context of imperialism and the creation of the “new” European empires in the late nineteenth and early twentieth century, the term terrorism seems apposite in considering the actions of European state-level actors’.17 The period from the mid-eighteenth century through to the last quarter of the twentieth century saw an unprecedented drive by a small number of European nations (first for control, then for retention of that control) over the world’s sea and land resources. The enslavement of local people on a vast scale was also part, and a key part, of the subjugation project. Primary actors in the execution of this ambitious project included the United Kingdom, but also the Netherlands, Belgium, France, Spain, Portugal and (towards the end) Germany and Italy. It was not just a nineteenth-century ‘scramble for Africa’, as the schoolbooks used to put it, but during earlier eras a scramble for the whole world. Violent subjugation had long underpinned England’s pacification of Ireland, from pre-colonial times right through until its absorption within the United Kingdom in 1801.18 This entailed traditional military campaigns against local Irish leaders as well as extensive forced dispossession of land, and on occasion forms of brutal conquest that would today be described as ‘ethnic cleansing’. As early as the start of the seventeenth century there was ‘violent resistance across South and South East Asia in response to the arrival of Portuguese, Dutch, British and Spanish colonists’.19 Settler communities from these imperial powers sometimes shook off (often violently) their colonial rulers, replacing one set of external controllers with another closer to home: the United States is one such example, the Afrikaner Boers another, and Ian Smith’s Rhodesia (now Zimbabwe) a much more recent (but short-lived) third.
The level of violence required to achieve the success enjoyed by these colonizing European nations was not the less staggering because the battles in the early phases of each conflict were so one-sided. Superior weaponry and organization – the result of industrial and cultural changes in the colonizing nations that had not occurred elsewhere – ensured that this was the case.20 Violence in British-run India, so extensive as control was being exerted in the eighteenth century, continued throughout the nineteenth. As Deana Heath observes in her excoriating account of ‘torture and state violence in colonial India’ during the years 1837–1901, there had been ‘at least 228 armed conflicts across the British empire, many of which were punitive colonial campaigns designed to quell unrest’.21 The distinguished Indian political scientist Professor Ranabir Samaddar notes that, ‘[i]n this war-torn century, empire making meant terror at every level and every step’.22 In Africa, ‘responses to colonial invasion took numerous forms’, with ‘anti-colonial insurgencies, while usually short-lived, [taking] on at least some of the attributes of “terrorism” and [these] were certainly seen as acts of illegitimate violence on the part of nascent colonial authorities’.23 However aggressive the long-established local communities were in their defence, nothing can explain – much less justify – responses like those of Germany to resistance in German Southwest Africa (today’s Namibia), of which one specialist historian has observed that, ‘[a]t a certain point, state terrorism becomes genocide, as it did in the case of the Nama, Herero and San: between 65,000 and 80,000 Africans were killed, and entire communities were simply wiped out’.24 The Belgian engagement in the Congo in the 1890s and 1900s was so awful ‘as to attract censure from other European powers – quite a feat in the age of violent imperialism’.25
