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Lost Liberty in the Age of CounterTerrorism

The counterterrorism measures that have been adopted in the decade since the September 11 terrorist attacks are supposed to keep us safe. To protect the public from violent extremists who are willing to commit grievous harm in order to promote their political or religious agendas, governments have passed a voluminous array of post-9/11 counterterrorism laws. This global legal arsenal, made up of hundreds of new laws, prevents terrorists from obtaining needed funding, gives security forces the powers they need to put terrorists behind bars, ensures that terrorist crimes are subject to appropriately severe penalties, and facilitates international cooperation against terrorism.

That, at least, is the justification for the global post-9/11 boom in counterterrorism legislation, a legal trend that has yet to abate. (Even now, several countries are considering passing additional counterterrorism laws.) But do these laws live up to their billing? Do they target terrorists or do they cast a wider net?

In a report issued last Friday, which I co-authored, Human Rights Watch reviews the vast assortment of counterterrorism laws that have been passed since September 2001. Assessing eight elements that are common to many of the laws, the report raises a host of serious human rights concerns. Not only are most counterterrorism laws overbroad, they have in some instances been employed to prosecute journalists, social protesters, opposition figures, and other disfavored groups under the guise of counterterrorism.

“Terrorism” in Bahrain

The current political unrest in Bahrain provides a compelling example of how counterterrorism laws can be misused—and how, by their broad terms, these laws lend themselves to misuse. Inspired by the uprisings that erupted across the Arab world, protesters took to the streets in Bahrain in early 2011, calling for democratic reforms. At mass protests, some demonstrators called for the establishment of a republic; others drew attention to the government’s poor human rights record.

Bahrain’s broad counterterrorism law—called the Law with Respect to Protection of the Community against Terrorist Acts—gave the government a potent legal weapon with which to respond to the protests. Passed in 2006, the law not only targets acts of violence, it also criminalizes actions meant to “disrupt” public order, “threaten” the country’s safety and security, or “damag[e] national unity.”

The government wielded the law to detain scores of protesters, and then put a number of the leaders on trial. In June 2011, a special military court convicted 21 opposition leaders of terrorism and other national security offenses. The defendants’ crimes included participating in street protests and making speeches critical of the government’s human rights record. Eight of the defendants were sentenced to life in prison; the remainder received sentences of up to 15 years, based in part on the 2006 law’s sentencing provisions. The convictions are currently on appeal.

Areas of Greatest Human Rights Concern

Current events in Bahrain—like those in Ethiopia, where six journalists were just sentenced for “terrorism”—underscore the broad and potentially dangerous powers granted by many counterterrorism laws. As the Human Rights Watch report explains, post-September 11 counterterrorism laws tend to expand government powers to “investigate, arrest, detain, and prosecute individuals at the expense of due process, judicial oversight, and public transparency.”

Titled In the Name of Security: Counterterrorism Laws Worldwide since September 11—the report begins by describing the international pressure that helped lead to the past decade’s boom in counterterrorism legislation. It focuses, in particular, on U.N. Security Council resolutions that imposed a laundry list of counterterrorism requirements on U.N. member states.

These resolutions, while made legally binding under the U.N.’s Chapter VII powers, did not set out a definition of terrorism, opening the door for countries to craft their own overbroad and opportunistic definitions.

Besides overbroad definitions of terrorism and terrorist acts, the Human Rights Watch report delineates seven other key areas in which counterterrorism laws tend to raise human rights concerns:

* designating terrorist organizations and banning membership in them

* barring funding to terrorism and terrorist organizations

* limiting speech that ostensibly encourages, incites, justifies, or lends support to terrorism

* expanding police powers, including powers to detain suspects without charge, limit their access to counsel, and prevent judicial oversight

* modifying trial procedures (including evidentiary rules) to favor the prosecution by limiting defendants’ due process rights

* imposing the death penalty for terrorism-related offenses

* creating administrative detention and “control order” mechanisms

The Future of Counterterrorism Legislation

Every year, the report asserts, “more countries enact counterterrorism legislation with sweeping powers and dangerously broad language.” Yet the trend toward ever-broader and more expansive counterterrorism laws has not been entirely uniform. A few countries have rejected efforts to expand their counterterrorism arsenal; others have even repealed unnecessary and abusive laws.

Norway, which refused to broaden its counterterrorism law after a murderous 2011 attack by a xenophobic extremist, is an encouraging counterexample to Bahrain, Ethiopia, and the other abusive governments catalogued in the Human Rights Watch report. Rather than respond with repressive legislation in the wake of the attack, the country’s prime minister promised “more openness, more democracy and more humanity.”

Joanne Mariner is the director of Hunter College’s Human Rights Program.  She is an expert on human rights, counterterrorism, and international humanitarian law. She is the author of the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons

This column previously appeared on Justia’s Verdict.

 

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JOANNE MARINER is a human rights lawyer living in New York and Paris.

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