COMPARATIVE LEGAL APPROACHES TO

HOMELAND SECURITY AND ANTI-TERRORISM

 Homeland Security Series
Series Editors:
Tom Payne, University of Southern Mississippi, USA
Tom Lansford, University of Southern Mississippi, USA

This series seeks to provide a body of case studies to explore the growing importance
and prominence of homeland security to national defence policy and to examine the
development of homeland security within the broader context of national defence policy
in the United States and other major developed states. This series will identify and
analyze the major threats that are particular to homeland security, as well as those that
affect broader national security interests. Comparative studies will be used to elucidate
the major similarities and differences in how states approach homeland security and
works which advocate new or non-traditional approaches to homeland security. The
series aims to integrate information from scholars and practitioners to provide works
which will influence the policy debate and examine the ramifications of policy.
Comparative Legal Approaches To
Homeland Security and
Anti-Terrorism

JAMES BECKMAN
The University of Tampa, Florida, USA
© James Beckman 2007

All rights reserved. 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.

James Beckman has asserted his moral right under the Copyright, Designs and Patents Act,
1988, to be identified as the author of this work.

Published by
Ashgate Publishing Limited Ashgate Publishing Company
Gower House Suite 420
Croft Road 101 Cherry Street
Aldershot Burlington, VT 05401-4405
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Ashgate website: http://www.ashgate.com

British Library Cataloguing in Publication Data

Beckman, James
Comparative legal approaches to homeland security and
anti-terrorism
1. National security – Law and legislation 2. National
security – Law and legislation – Case studies 3. Terrorism
– Prevention 4. Terrorism – Prevention – Case studies
I. Title
345’.02

ISBN: 978 0 7546 4651 8

Library of Congress Cataloging-in-Publication Data

Beckman, James.
Comparative legal approaches to homeland security and anti-terrorism / by James
Beckman.
p. cm. -- (Homeland security)
Includes bibliographical references and index.
ISBN-13: 978-0-7456-4651-8
1. National security--Law and legislation--United States. 2. National security--Law and
legislation. 3. Internal security. 4. Terrorism--Prevention. I. Title.
KF4850.B43 2007
343.73'01--dc22
2006031450

Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.
 Contents

Acknowledgements vii
Preface ix

Introduction 1

1 The United States 13

2 The United Kingdom 51

3 Germany 89

4 Spain 113

5 Russia 125

6 Japan 137

7 Israel 145

8 International Law Components—EU and International

Law Considerations 153

9 The Current Status of Homeland Security 163

Bibliography 171
Index 179
 This book is dedicated to my wife, Maria Dawn Beckman.
If the world were filled with individuals with as noble and generous a spirit
as hers, there would be no need for a book of this nature.
 Acknowledgements

First and foremost, I am grateful to Ashgate for the publication of this work, and
multiple individuals at Ashgate who assisted directly or indirectly in the publication
of this book. Also, my profound thanks are extended to the general editor of this
Homeland Security series, Professor Thomas Lansford (University of Southern
Mississippi). Professor Lansford recognized the importance of this topic as worthy
of inclusion as part of the larger Homeland Security series, and provided important
editing input, as well as administrative support during the writing of the book. I have
been fortunate to work on several projects over the years with Professor Lansford,
and have been repeatedly impressed with his knowledge and professionalism.
Second, I would like to acknowledge the strong institutional support provided by
the University of Tampa during my time working on this project. Specifically, the
University of Tampa provided a generous award of a research grant (the David Delo
Faculty Research Grant) to assist with expenses incurred in the research and writing
of this work. Additionally, I was fortunate to have the assistance of two incredibly
bright law students, Mr. Michael Stanski and Ms. Genevieve Whitaker, who assisted
with research and the compilation of materials needed to compose the chapters on
the United Kingdom (Chapter Two) and Israel (Chapter Seven), respectively. Mr.
Stanksi, a 2006 Honors program alumnus of the University of Tampa, was awarded
an Honors Program Undergraduate Research Fellowship in 2005 to specifically
assist with research for this book regarding the United Kingdom and its approach to
homeland security and anti-terrorism. Ms. Whitaker, a 2003 Honors program alumna
from the University of Tampa, and now a third year law student at Stetson University
College of Law, conducted research on the Israeli legal system for this book. Both
individuals were excellent students at UT, and the research conducted by both was
top notch graduate level research, and ultimately indispensable to the completion of
the U.K. and Israel sections of this book. Thus, I am indebted to both individuals for
their excellent research and assistance.
Third, any acknowledgement would be incomplete without recognizing the
support of my wife, Maria Beckman. A top rate lawyer and legal mind in her
own right, she is clearly the “better half” of our relationship, and I greatly value
her guidance and wisdom, on both this project and on a myriad of other issues.
I have encountered very few people with as sharp an intellect as hers. However,
beyond this, I am most grateful for her unconditional love and support during the
year and a half spent researching and writing this book. She sacrificed my presence
on many evenings and weekends, as I labored with some aspect or another of this
book. She also listened patiently to my comments about this project, and provided
key encouragement at several points when I thought this project might not reach a
satisfactory conclusion. For all of this, I am deeply grateful.
viii Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Finally, any omissions or errors found in this work are attributable solely to the
author. I have done my best to delineate what I believe to be the most interesting and
germane aspects of each country’s approach to homeland security and anti-terrorism
laws—without getting too bogged down in the minutiae of specific statutes, cases
or constitutional provisions. Of course, the world is rapidly changing, and the
law rarely remains stagnant, so the aspects of a particular country’s approach to
homeland security and anti-terrorism laws will likely change in the coming years.
However, my hope is that the reader is able to identify and appreciate the major
differences and distinctions as to how each country attempts to protect the homeland
from the scourge of terrorism. These major differences and distinctions are not likely
to change as much over time, and also illustrate what policy determinations are
most important to each country and the majority of its citizenry. American W.E.B.
Du Bois once famously declared that “the problem of the Twentieth Century is the
problem of the color line,” and that adequate time and resources should therefore be
allocated to solving this problem. Countries such as the United States fortunately
did spend much time and energy in seeking solutions to the race problems during
the twentieth century. What then is the main problem of the nascent Twenty-First
Century? Within a year and a half of the dawn of the century, the horrific attacks on
New York and Washington, DC, occurred, causing thousands of needless deaths and
carnage, and instantly making the world’s population feel less safe and secure. Will
the problem of the Twenty-First Century continue to be the problem of terrorism? If
so, as with race relations last century, adequate time and resources must be allocated
in analyzing and attempting to solve the problem. My hope is that this book will
enlighten and inform those seeking to end the scourge of terrorism—and will offer
ways in which it might be done without needlessly sacrificing the positive values of
society and the sanctity of the Rule of Law.
 Preface

This book presents an overview for the reader as to how domestic law enforcement
institutions, structures, laws, policies and agendas have generally changed since
September 11, 2001, across the globe. The basic premise/idea of the author is that
one country can learn from another country’s successes and failures utilizing a
comparative law methodology. This is not a recent fad or unusual approach. Indeed,
it is argued that
Aristotle, as far back as 350 BC, compared the constitutions of the various
Greek city-states utilizing a comparative analysis/approach. Similarly, Plato in his
book The Republic, as far back as 360 BC, advocated a comparative law approach
between nation-states. As American law Professor Mary Ann Glendon has written,
in summarizing Plato’s belief on the importance of the comparative law analysis and
in discussing the importance of comparative analysis in the context of Plato’s The
Republic):

Since the city must constantly be re-examining and revising its laws, its Guardians would
do well, he [Plato] advises, to send out mature citizens to study especially good laws
elsewhere, and to seek assistance from wise persons wherever they may be found, even
in ill-ordered cities.

Therefore, consistent with the goals of Aristotle and Plato’s admonitions (and
consistent with the overall aim of the series), this book will explore how various
other countries such as the United Kingdom, Russia, Spain, Israel, and Japan have
dealt with (or are dealing with) homeland security in the aftermath of 9/11, or other
similar recent terrorist actions in their country which may have prompted a change in
laws concerning homeland security and how to deal with the modern terrorist threat
against the nation state. Unfortunately, in recent years, many countries have had
“their own 9/11s,” including the bombing of the U.K. underground in the summer
of 2005, the bombing of a Spanish passenger train system in the spring of 2004, and
the seizures of both a Russian theatre and a Russian grade school (both resulting
in a protracted hostage taking situation and the deaths of hundreds of innocent
civilians) in 2002 and 2004, respectively. The United States is clearly “not alone”
in its war on terrorism. All of the countries selected for coverage in this book have
had to deal with their own internal acts of terrorism in recent years. Indeed, “many
European governments, including some that had criticized the United States for its
antiterrorism measures, have been extending their own surveillance and prosecution
powers” (Bennhold, 2006). Further, “human rights experts say that Europe, too, is
experiencing a slow erosion of civil liberties as governments increasingly put the
prevention of possible terrorist actions ahead of concerns to protect the rights of
people suspected, but not convicted, of a crime” (Bennhold, 2006). As the heading of
x Comparative Legal Approaches to Homeland Security and Anti-Terrorism
an Amnesty International Report indicated, “from Australia to Zimbabwe, using new
laws and old-fashioned brute force, governments are sacrificing human rights on the
altar of terrorism” (Amnesty International, 2003). While it is arguable whether or not
human rights are being needlessly sacrificed “on the altar of terrorism,” what is clear
that many nations around the globe have after 9/11 amended, augmented or revised
their penal codes and laws, and passed legislation strengthening the tools of law
enforcement in ferreting out and thwarting potential acts of terrorism. Indeed, while
many countries have amended their laws in response to America’s 9/11, or to similar
incidents in their own countries (e.g., July 2005 Underground/Tube Bombings in
U.K., attack on Beslan school in Russia in 2004, Madrid train bombings in 2004,
et cetera), international law also mandates these amendments. That is, shortly after
9/11, the Security Council passed Resolution 1373, which mandated that nations
amended their laws in various ways, including the “establishment of terrorist acts
as serious criminal offences in domestic laws and regulations, with commensurably
serious punishment.” Article 25 of the UN Charter specifies that all “members of the
United Nations agree to accept and carry out the decisions of the Security Council…”
As such, Security Council Resolution 1373 is binding on all nation states, and each
country has the affirmative obligation to amend its domestic laws to implement the
terms of this resolution. Yet, there are a variety of ways in which to implement
Resolution 1373, and an analysis of the practices of the countries covered in this
book reveals that, despite the identical mandate from the Security Council, each
country has enacted different laws to meet the obligations of UN Security Council
Resolution 1373.
Thus, the basic idea behind this book will be to compare the various approaches
of these countries in recent years to combat this terrorist threat and protect its
citizens and homeland from this especially insidious form of radicalism. As Interpol
Secretary (1978-1985) Andre Bossard once commented, “in facing global crime we
are not powerless. The tools to fight it exist; they have to be adopted and applied”
(Reichel, 2005). Additionally, all of the countries selected for coverage in this book
“matter” to the United States, beyond their experiences dealing with terrorism, and
in the larger sense of being fellow major power brokers in the world, and for the
most part, important allies to the United States. In addition to focusing on certain
select countries such as the U.K., Russia, and Germany, this book will also look at
regional treaty alliances relevant to the issue of terrorism and homeland security
(such as the North Atlantic Treaty Organization and the European Union), as well
as general public international law responses, embodied either in new bilateral or
multilateral treaty obligations, or United Nation specific responses to the issue.
The ultimate goal of this work is not just to compare and contrast the practices
of various countries, but to make meaningful distinctions between the practices and
laws of the different countries so as to help with the evaluation of whether to borrow
the successful practices of these other countries, or to eschew laws and practices
that are unyielding or considered to draconian to individual rights and civil liberties.
Does the threat of new-age terrorism brought about by 9/11 justify an amorphous
“war” on terror? Phrased another way, is it possible to combat terrorism through
 Preface xi
principled domestic laws (and without great sacrifices to civil liberties), or is a
war-time approach needed to “fight fire with fire?” Thus, the analysis and coverage
will encompass not only comparative law and legal approaches (i.e., the study of
legislation, regulations, cases et cetera), but also policy initiatives and choices
between several different viable alternatives. As will become evident in the following
pages of this book, the analysis and coverage will encompass differing approaches to
domestic legislation (in each country) since America’s 9/11 (or another recent act of
equal magnitude within the country at issue), how each country has revised (if at all)
its laws since that time, including the types and elements of Crimes against the State,
how the country has restructured its domestic homeland security/law enforcement
apparatus, how it goes about crime prevention and detection, how criminal and court
procedures (and rights to the accused) have been revised and/or eroded (if at all),
how the judicial branch will check (if at all) the generally expansive anti-terrorism
legislation passed in the various countries since 2001, and what sort of punishments
for Crimes Against the State and Homeland Security have been imposed since 2001.
A major focus of this book is to delineate the approach of the United States, which
will then be used as a model or base approach in which to analyze the approaches
of the other countries. Hopefully, by the conclusion of the book, the reader will be
able to answer for him or herself the appropriateness of each country’s reaction to
the threat of the terrorist threat within the last decade.
The following pages of this book will also explore and discuss case examples
which have occurred in several of the countries (namely, the U.S., U.K., Germany
and Spain), in order to illustrate how these principles and changes in the law play
out in practice and reality. An analysis of court actions will also provide meaningful
information as to how the judicial branch in each country will implement the
legislation and perhaps exercising independence in checking undue erosions to
civil liberties and constitutional rights. However, given length limitations for this
book—an analysis of the case law of all countries otherwise covered in this book is
not possible. Of course, in the process, this book will cover ongoing debates in each
country regarding the struggle between the need to improve security, and the need
to protect civil liberties and the rights of the accused. Finally, this book will discuss
how the United States compares to the other countries studied.
For instance, following 9/11, many in Congress looked to how Israel has handled
homeland security and structured its own anti-terrorism measures, as “a role model
for homeland security in the United States” (Gibson, 2003). As a member of the
House of Representatives Select Committee on Homeland Security commented,
“the Israelis have learned to be aggressive on terrorism. They’ve learned to play
offense, not just defense…[and] they have prevented over 1,000 attacks over the last
three years” (Gibson, 2003). Yet, whether Israel’s measures should be emulated and
copied in the United States is subject to intense debate. Despite the fact that American
law enforcement travel to Israel to see how Israel runs its security operations and
to meet with Israeli experts on terrorism (Fooksman, 2006), and even though Israeli
officials have “a certain amount of know-how [that they are] happy to share…with
America,” some of the methods “may not be accepted in the United States” (Gibson,
xii Comparative Legal Approaches to Homeland Security and Anti-Terrorism
2003). While the measures taken by Israel in recent years may have prevented over
1,000 attacks, the aggressive utilization of the military as a security/police force and
other arguable draconian measures are approaches that might not work in the United
States (as will be discussed more fully in the upcoming chapters of this book). As
the president of the Arab American Institute (James Zogby) commented in 2003,
“It’s the last place on Earth I’d go for a model. They are notorious violators of
fundamental human rights and have not solved the problem, which in their case is
substantially different from our own. They insist on not only occupying territories
but violating a broad range of human rights. That [members of Congress] are looking
at Israel only tells me they are looking in the wrong direction. Our law enforcement
people don’t need new gimmicks. They need to operate within our Constitution
with good solid policing” (Gibson, 2003). Whether the experiences of Israel (or the
United Kingdom, Germany, Spain, Russia, Japan, or the United States) will work in
the context of other countries is an issue that will be addressed in this book.
While there appears to be a proliferating number of works dealing with the specific
practice of a specific country in regards to homeland security and terrorism, there appears
to be a paucity of books like this one which take the comparative law/policy approach,
comparing and contrasting the various approaches of competing systems. While many
of the books on the market are valuable in ascertaining the current practice and laws
of a country (most notably, the United States), the major deficiency in these works
(from the mindset of a Comparativist) is that the coverage is myopic, and sometimes,
ethnocentric. Many of the books on the market dealing with the United States and its
laws and practices relating to homeland security, take this narrow approach/view to
covering revisions to U.S. laws and institutions when dealing with homeland security,
terrorism and Crimes against the State, and usually make only passing references to
the practices of other select countries. Yet, many other countries have been dealing
with these issues for years, and readers can benefit from considering comparative
approaches to the subject, even if only to solidify the merits and “rightness” of the
reader’s own country’s approach. Thus, the following pages of this book will try to
cure this deficiency and provide an analysis of homeland security law and policy from
the broad perspective, utilizing a comparative analysis methodology.
A few words of explanation are in order for the work. First, even in comparing
and contrasting a handful of countries, there exists a tremendous amount of law to
examine and address. Because of space limitations in a book of this size, it is virtually
impossible to discuss comprehensively every detail of each country’s terrorism laws.
For example, just in the U.K. alone, the Anti-Terrorism Acts of 2000 and 2001 are
quite voluminous, together spanning hundreds of articles and pages of densely
packed material. Again, just with the U.K., if one examines the main terrorism laws
before 2000 (namely, the Prevention of Terrorism Act of 1989 and the Terrorism
Act of 2000), and the Anti-Terrorism Act of 2004/2005, there are hundreds and
hundreds of pages of relevant provisions. The same holds true, for example, when
examining the U.S. Patriot Act. The Patriot Act amended over a dozen different
major pre-existing federal statutes and impacted a total of approximately thirty
different sections of the U.S.Code. It has been alleged by many and admitted by
 Preface xiii
some, that given its length spanning hundreds of pages, it was not read in detail (or
at all in several cases) by congressmen and senators before it was voted upon in the
House and Senate. Thus, again, given the sheer enormity of the various laws from
seven separate countries, as well as certain international organizations like the EU
and UN, it is impossible go into great detail. The author has attempted to identify
the main features and attributes of each country and system, and make comparisons
upon the main features. However, given that this book tries to ambitiously cover
as many different countries of significance as possible, it means that the coverage
for particular countries cannot dwell on all the various permutations of terrorism
legislation on the national legal system. As leaders in the war on terror, the U.S. and
the U.K. have been given the most space in this book.
Second, given that the focus of this book is on an examination of laws, a factual
delineation of the history of terrorism in each country is not provided. This book
proceeds on the basis that the reader will have at least a passable level of knowledge
on actual terrorism related events in the past. Thus, for example, neither a factual
description of what occurred on 9/11 in the United States nor a description of the
terrorist attacks on the British underground in July 2005 will be provided. The same
will be true for other countries examined or referenced in the following pages of this
book—except to provide a brief statement of the country’s history in dealing with
terrorism (in order to put its current laws in context). The focus of this book is on
legislative and legal responses to terrorist acts, and not a rendition of the acts itself.
If one is interested in gaining a deeper and more comprehensive understanding of
what occurred in the United States on 9/11, the 9/11 Commission Report would be
an excellent reference to utilize in that regard.
Finally, the goal of this book is to delineate for the reader the relevant and
germane legislative responses of each country to the modern terrorist threat.
However, recognizing the subjective nature of the issue, the ultimate answer
regarding the propriety of these various legal responses is left largely to the reader.
The hope of the author is that this work will serve as a reference for those readers
seeking to make sense of the various possible legislative, executive and judicial
approaches to the issue of homeland security and combating terrorism, and to
understand various different approaches to the issue are possible. Of course, the
great debate rages between the need for national security and homeland security,
and the degradation of human rights and liberties which arguably often accompanies
the expansion of law enforcement powers and attended with the goal of homeland
security. So the issue is how to balance the need for collective security of society
on one hand, verses the protection of individual liberties on the other. American
founding father and internationally renowned doctor of science and diplomacy,
Benjamin Franklin, once commented that “they that can give up essential liberty to
obtain a little temporary safety deserve neither liberty nor safety.” In the modern era,
British Law Lord Hoffman has stated in a terrorism related decision (A v. Secretary
of State, 2004, UKHL 56, a case which ultimately invalidated a British law under the
European Human Rights Charter) that “the real threat to the life of the nation, in the
sense of a people living in accordance with its traditional laws and political values,
xiv Comparative Legal Approaches to Homeland Security and Anti-Terrorism
comes not from terrorism but from laws such as these. That is the true measure
of what terrorism may achieve. It is for Parliament to decide whether to give the
terrorists such a victory.” Similarly, United States Supreme Court Justice Sandra D.
O’Connor has written a comparable admonition, that it “would indeed be ironic if,
in the name of national defense, we would sanction the subversion of one of those
liberties…which makes the defense of the Nation worthwhile.” However others,
such as University of Chicago Law Professors Eric Posner and Adrian Vermeule
have argued that such admonishments are merely judicial clichés, and that “no nation
preserves liberty atop a stack of its own citizens’ corpses, but if one did, it would not
be worth defending” (Posner & Vermeule, 2005). Posner and Vermeule have further
argued, for example, that the “incremental reduction in civil liberties [done in the
name of homeland security] is not equivalent to their elimination.” Regardless of
the opinions and politics of the readers, my hope is that the reader and user of this
book will find it to be of great value in determining his or her particular position
on the important issue of homeland security, anti-terrorism laws, and the impact
of civil liberties, without sacrificing a belief in the sacrosanct nature of the Rule of
Law. The German concept of Rechtsstaat, or what we would define as the concept
of the “Rule of Law” today, connotes the principle, that above all, laws are supreme.
“The phrase ‘laws change but the Law must remain’ is commonly used to express
the concept of Rechtsstaat” (Reichel, 1999). Thus, the idea of this book is not just
levy criticisms on various governments for what some claim are draconian laws—as
it is relatively easy, as one author has written, “for human rights lawyers to pick
holes in a government’s antiterrorism strategy” (Dickson, 2005). Rather, the idea is
to lay various approaches on the table in order to evaluate which options seem the
most palatable to a democratic society in light of the Rechtsstaat. The critics “do not
themselves carry responsibility for ensuring that the most basic right of all—the right
of life—is adequately protected through the taking of precautions against terrorist
acts” (Dickson, 2005)—rather, the government carries this onerous responsibility—
and it would be negligent for a government to avoid its responsibilities in this area.
However, it is for the educated citizens of each society to inform themselves of the
laws, and relay to their respective governments their wishes in this area. Thus, in
this regard, this book can serve as an aid in helping governments tackle the difficult
task of appropriately protecting society without unduly forfeiting certain individual
liberties. While ultimate resolution of the issue on how to deal with the plague of
terrorism may take years (if ever), the hope is that the book will help foster or fuel
the continuing debate on these issues, and that this book may be one of many steps
in the right direction in seeking an ultimate resolution on how best to purge the lands
of lawless violence, even perhaps by changing laws, without having to sacrifice an
adherence to The Law.
 Introduction

The Changing Terrain and Why the Experiences of Other Countries are
Relevant

The world has changed drastically since September 11, 2001. For the United States,
as well as for many countries around the globe, the specter and fear of another
terrorist attack looms large. It looms large for most of the citizenry of these countries
and the domestic law enforcement agencies charged with protecting the country
and its citizens against harm. In the wake of September 11, 2001, the United States
drastically restructured its domestic law enforcement approach to terrorism, by among
other things, combining multiple separate government agencies into the Department
of Homeland Security, infusing millions and millions of dollars of resources in the
Department, revising laws and policy, and passing domestic legislation such as
the U.S. Patriot Act, to purportedly aid and assist law enforcement in ferreting out
potential criminal and terrorist acts.
American historians are fond of describing the first shot of the American
Revolution in 1776 as the “shot heard round the world.” Presumably, these comments
are made because the shot eventually brings to an end European dominance in the
New World and a new Democratic model of governance for the world to emulate.
Yet, it is accurate to use this quote to describe America’s 9/11 as well, it was the
metaphorical “shot heard round the world.” The events on September 11, 2001, not
only shocked, frightened and disturbed the American people, it reverberated around
the globe. As United Kingdom Prime Minister Tony Blair was apt to comment in
the weeks and months following 9/11, the attacks were not just on the United States
of America, but all the “civilized nations” of the world (Webster, 2001). As one
would expect from countries believing to be under attack, the “civilized world”
began to mobilize in the days, weeks and months following the attack. Indeed,
initially, this took the form of extraordinary statements of support and solidarity,
with many world leaders expressing sympathy and outrage. This in turn led to
actions of support by regional and international organizations, such as the North
Atlantic Treaty Organization (NATO), the European Union (EU) and the United
Nations (UN) General Assembly and UN Security Council, which will be discussed
in detail in Chapter Eight. However, importantly for the purposes of this book, this
mobilization of the “civilized world” also resulted in some introspection by leaders
of some of these countries, asking what might be done to prevent America’s 9/11 to
be replayed someplace else on the globe. While certainly several of America’s allies
increased their criminal investigation and prosecutions of suspected terrorists as a
friendly gesture to the besieged United States, such actions also stemmed at least
in part in the effort to preclude a repeat on the actions on the home turf of another
2 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
country. Thus, America’s 9/11 was a catalyst for changed and changing laws not
only in the United States in the months following September 11, 2001, but in
other countries around the globe as well. Again, in the words of Prime Minister
Tony Blair, who in explaining the goal of passing more stringent measures such as
deporting suspected terrorists and shutting down radical mosques in the “war of
terrorism,” stated “let no one be in any doubt. The rules of the game are changing”
(Time, 2005).
However, it is also a bit simplistic and ethnocentric to say that all modern anti-
terrorism laws around the globe stem from events that took place in New York
City and Washington, DC, on September 11, 2001. Sadly and unfortunately, many
other countries have a much longer history of dealing with terrorism, a history that
extends well before September 11, 2001. Other countries have also had to deal with
questions on how best to protect its citizenry and detect, thwart, capture, and punish
terrorists and other criminals bent on committing Crimes against the State (such as
terrorism, treason, sedition, espionage, mutiny, insurrection, among other things).
Other countries, such as Israel and the U.K., for example, have been focused on
combating terrorism and Crimes against the State for decades. Israel, for example,
has been dealing with the specter of terrorism since the earliest days of being
bestowed nation-state status by UN Resolution 273 in 1949. Likewise, the U.K. has
dealt with terrorism spawned by a desire of some groups to fight for an independent
Ireland. Indeed, in the U.K., the main paramilitary group, the Irish Republican Army,
was established over eight decades ago for purposes of breaking Northern Ireland
away from the U.K. Of course, many of the terrorist events and activities actually are
attributable to a much more militant 1969 splinter organization, called the Provisional
IRA. The Provisional IRA is response for a long list of terrorist actions in the U.K.
since 1972. Thus, the U.K. has been battling this form of domestic terrorism for,
conservatively, over four decades. Other countries such as Spain and Russia have
been dealing with secessionist movements (the Basque regions within Spain and
The Republic of Chechnya within Russia), both of which have also spawned a good
deal of domestic terrorist acts. Other countries (like the United States) can learn
much from the experiences of countries who have been bogged down in the battle
for decades.
Furthermore, many of these countries have experienced even more severe terrorist
actions since America’s 9/11, and for these countries, these events (called “their own
9/11s”) stand out just as painfully as 9/11 does in the collective American psyche.
Three recent examples should illustrate this point. First, as mentioned above, Russia
has unfortunately been dealing with bloody terrorist acts for years. However, in what
has been mentioned as “Russia’s 9/11,” on September 1-3, 2004, the Beslan School
Hostage Crisis/Siege occurred in the Russian town of Beslan in North Ossetia,
Russia, with Chechen terrorists taking hundreds of schoolchildren and adults hostage
at a local school. On the third day of the standoff (September 3, 2004), Russian
security forces and the terrorists began trading gun fire, which prompted a storming
of the school. In the end, according to the official report, 344 innocent civilians were
left dead, with 186 of the victims being young children. Second, in Spain, on March
 Introduction 3
11, 2004, in an event known as the Madrid train bombings, and also called 11/3 or
3/11 in Spain, there were a series of coordinated bombings against the commuter
train system in the morning commute in Madrid, Spain. The coordinated bombings
(ten separate explosions) were said to be the deadliest attack by terrorists against
civilian targets in Europe since the Lockerbie bombing in 1988. Further, the train
bombings were the worst terrorist attack in modern Spanish history, which was no
small feat given Spain’s long bloody conflict with a domestic separatist organization,
the ETA, throughout much of the latter half of the twentieth century. The attack in
2004 left 191 individuals dead, and 1,460 people wounded. Finally, third, the U.K.
suffered a similar coordinated attack on its underground metro system on July 7,
2005, similar to the attack on Spain over a year earlier. The attack, which resulted
in deaths of fifty-two innocent civilians, along with 700 injured individuals, was the
deadliest terrorist attack on British soil since the Lockerbie bombing in 1988, the
deadliest bombing in London since World War Two, and arguably the first time in the
history of the City of London that it was subject to coordinated suicide bombers by
Islamic militants. These incidents clearly show that many countries have had their
own “defining” event in regards to terrorism since September 11, 2001.
Thus, just as in the United States in the months and years since 9/11, events like
those discussed in the previous paragraph have caused the study and revision of
laws dealing with homeland security and terrorism in countries such as the U.K.,
Spain and Russia. In terms of which countries were included for discussion and
analysis in this book, the comparative legal practices of the United Kingdom, United
States, Russia, Spain, Germany, Israel, and Japan are included. These countries
have been selected for analysis and comparison for several reasons. First, each of
above countries has unfortunately experienced horrific terrorist events on their home
soil within immediate past. Of the countries that will be addressed in this book,
Japan’s major terrorist attack, the Sarin gas attack on the Tokyo underground mass
transit system in 1995, was the “oldest” of the attacks. All of the other countries
have unfortunately had to deal with major terrorist acts within the first decade of the
twenty-first century, almost on a yearly basis. So, for example, the U.S. suffered the
terrorist attacks on New York and Washington, DC, in 2001, Russia in 2003, Spain
in 2004, and the U.K. in 2005. Since each of these countries have had to react to
recent attacks and incidents, any changes to their legal systems and laws are roughly
contemporaneous with changes in the U.S. legal regime and system. Comparing a
country’s laws with that of another country from a different time period are very
problematic, to say the least. What might be a perfectly legitimate and effective
legal measure in the 1940s, for example, might be completely unsuitable in the early
twenty-first century. Thus, it is very important that the countries being compared
have been experienced the same events and threats, and their legal responses (if
any), at roughly the same time or point in history.
Second, with the exception of the attack on Japan in 1995, all of the other countries
have been the subject of attacks by one terrorist group in particular, al-Qaeda, which
represents a particularly virulent, insidious, and violent form of extreme, fanatical
and militant religious (Islamic) based terrorism. The methods and actions of this
4 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
group do not vary widely from country to country. Thus, again for purposes of an
accurate comparison, to the extent the countries compared are revising their laws
based upon the same group and types of actions perpetrated by the group, the
comparison is more apt. The third reason that each of these countries were selected
for analysis is that each remains an important country in the overall “war on terror,”
or at least has played a notable role on the world stage in combating terrorism. Some
of the countries have taken a very notable role in combating terrorism by joining
in military operations with the United States, most notably the U.K. However, the
other selected countries have offered more indirect support in the war on terror,
through such actions as funding and financial assistance, international diplomacy
and cooperation, actions in support through the UN or EU, et cetera.
Fourth, many of the countries selected for coverage in this book (as illustrated
briefly above) have been combating the plague of terrorism for years, and countries
such as the U.K. and Israel, for example, have been dealing with issues of terrorism
not just in the present period, but also for decades. Thus, those countries are
especially valuable for purposes of analysis and study, as they offer a well-established
historical practice, as well as contemporary practices and dimensions as well. Fifth,
the countries selected represent five major areas of the world, namely North America
(United States), Europe (U.K., Germany, Spain), Eurasia (Russia), the Middle East
(Israel) and the Pacific Rim (Japan). Finally, as some readers may know, of the four
global legal traditions (Common Law, Civil Law, Religious Based Systems, and
Socialist Tradition), the Common Law and Civil Law legal systems represent most
of the world in terms of coverage. The countries covered in this work span countries
with a common law heritage (U.K. and U.S.), the Civil Law Romano-Germanic
tradition (Germany, Spain, Japan), remnants of a socialist legal system (Russia—
now a Civil Law country, with some remnants of a socialist legal system) and a
system with strong religious influence (Israel).

What is the Comparative Law Methodology?

Most people engage in comparisons on a daily basis—often without any realization.

When you get up in the morning, and decide on which clothes to attire for the
day, most people make the selection by thinking about several different options
or alternatives, and picking the best outfit from all the possible choices. Likewise,
when a person goes out to eat at a restaurant, a person often selects a dish, based in
part by eliminating other potential dishes for one reason or another. This process,
of making selections after engaging an analysis of the pros and cons of different
choices/options, represents a simplified example of the comparison methodology.
Alfred North Whitehead, a famous writer and thinker, once summarized this process
by remarking simply that “everything should be compared to as much as possible”
in order to make educated, sound decisions. This approach applies to the law as well,
with the field of “comparative law” being reserved for the comparison of laws in
competing systems/jurisdictions.
 Introduction 5
So, what is the goal of engaging in a comparative law analysis? Is it merely
to make a list of the differences between differing competing systems? If the
comparative law analysis is done properly, the conclusion of the analysis will not
merely be laundry lists of differences and similarities on two sides of a ledger between
competing systems. If the analysis is worth anything, an effort must be made to glean
principles and conclusions regarding these differences. Otherwise “comparative law
[and the comparative analysis] can easily degenerate into a dizzying spiral in which
everything is both cause and effect; different from, but similar to, everything else;
separate but intertwined; and so on” (Glendon, 1999). If done properly, a comparative
law analysis should achieve some or all of the following results: first, an eradication
of a myopic view caused by ethnocentrism—which might also lead to the adoption
of positive aspects of another country’s laws or eschewing the negative aspects of
another country’s laws; second, a fostering of the dynamics of social change by
utilization of the “social laboratory” theory; and third, a more in depth knowledge
of one’s own legal system—by studying the elements and dimensions of another
country’s legal system.
First, a study of another country’s laws and practices helps to eliminate the myopic
world view caused by ethnocentrism. The concept of ethnocentrism is concept/belief
that your system, your country, your race, et cetera, is superior to all other systems
and countries. The concept originally came from writings of Herodotus (484-425
BCE), a famous Greek historian, who, in writing about the Persians, discussed the
Persian view of the world in concentric rings of value. According to Herodotus,
Persia was the cultural and intellectual apex of the world, represented by the
inner circle. As one moved away from Persia geographically, again according to
Herodotus, the cultural and societies decreased in terms of superiority. This notion of
concentric circles of lesser intrinsic value decreasing ultimately gives us our notion
of ethnocentrism today. Many argue that the United States and Western Europe have
long been guilty of ethnocentrism. In fact, there is a European specific term of the
ethnocentrism of Europe, namely Euro centrism. As far as the U.S. is concerned,
for a long time, comparative law was not emphasized in U.S.—either in schools or
in practice. Americans have generally tended to assume that they need not concern
themselves with events outside of the U.S.. However, as the world continues to
shrink and becomes a truly “global village,” the isolationist mindset becomes more
untenable and must be changed.
Second, engaging in a comparative law helps with the dynamics of social change.
That is, as American law Professor Mary Ann Glendon has written in regards to
Plato’s admonishments to society, “since the city must constantly be re-examining
and revising its laws, its Guardians would do well…to send out mature citizens
to study especially good laws elsewhere.” Americans have long advocated this
benefit of comparative law—but not involving other countries. Rather, because of
the American system of federalism, there is one federal government and 50 state
governments. As such, historically, how one state did something could vary widely
from the practices in another place in the country. It is in this context of American
federalism that Louis Brandeis, the great American Supreme Court justice, advocated
6 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
that states should serve as “social laboratories for the nation.” Justice Brandeis, a
progressive lawyer and justice, argued that governments have a duty to seek out new,
untested approaches to major problems that confront a society. Furthermore, since
certain areas of law, and approaches to the law (such as using social science data
with law), are like the “largely uncharted seas,” it is incumbent upon the law makers
and judges to advance society through “experimentation,” through the same “process
of trial and error” that one would expect in the realm of the physical sciences. For
Justice Brandeis, societal changes should best be effectuated through experiments
at the state level, and not be the national government. As Brandeis wrote, even
when the federal government is deadlocked, “a single courageous state [can]…if its
citizens choose, serve as a laboratory.” According to Brandeis, it is “one of the happy
incidents of the federal system…[that when a state experiments with a]…”novel
social and economic experiments,” it can be done “without risk to the rest of the
country.” Thus, the fifty state governments in the U.S. can serve as legal laboratories
of innovation and revolutionary new approaches to the law, in attempting to solve
the pressing problems and concerns of society.
While Justice Brandeis promoted his concept of a “social laboratory” at the turn
of the twentieth century to an American audience, his concept of a “social laboratory”
is now very relevant and applicable to comparative law between nations. Put onto the
global stage, countries can learn successes and/or failure of other countries—before
trying the program ourselves—through the use of comparative law and Brandeis’
“social laboratory” idea. As one set of authors have explained, “the experimental
approach is preferable since it tends to minimize the errors or distracting factors
that are inherent in unplanned or unmanipulatable observations. By this process of
verification, hypotheses are either rejected or transformed into laws” (Dragnich &
Rasmussen, 1986). So, a country dealing with a certain problem, in an effort to
revise and amend their laws to be responsive to changing societal needs, might wish
to see how other countries have approached the issue, and whether the effort was
ultimately successful or a failure. The benefit of this approach is that a country does
not need to “reinvent the wheel” itself, and can study the successes and failures of
other countries, as a scientist would study scientific principles in the laboratory. For
example, if a country is dealing with the problem of sexually transmitted diseases
among prostitutes, it might be wise to see how other countries have approached
the problem. One would find various approaches to the issue, ranging from the
legalization of prostitution with mandatory monthly testing, to free social services and
health care for prostitutes, to the criminalization of prostitution in order to curtail the
practice and detrimental effects. A scholar engaging in the comparative law analysis
would use the experiences of these other governments to ultimately help formulate
and implement a policy. If there is a desired policy at the onset based upon societal
beliefs (e.g., the criminalization of prostitution as the best way to decrease sexually
transmitted diseases—based in part upon moralistic beliefs), the comparativist can
test the wisdom of this approach by analyzing how this course of action fared in
other countries who have accepted this legislative approach. True to the comparative
law approach, few major legislative programs are undertaken in Europe today
 Introduction 7
without extensive preliminary comparative surveys. Thus, one undertaking an issue
like how best to deal with the specter of terrorism (which are the most successful
measures, the least successful, et cetera) can be assisted greatly by the utilization of
comparative law as a tool in formulating the best possible policy.
Third, studying and analyzing the practices of other countries concerning
terrorism and homeland security will provide further insight into the reader’s own
country. This is true for two reasons. First, comparative law also is quite valuable
in educating and highlighting the characteristics of one’s own system through the
study of competing systems. Why? The answer lies in the fact that any comparison
must have a set of benchmarks or established practices from which to compare the
practices of other countries. Thus, when one studies the approaches of a country
to a particular issue, one naturally also looks to one’s own system. Over time, this
heightens the awareness and understanding of the comparativist for the practices
and approaches of his or her own country. The French historian Frenand Braudel
captured this notion best when he said the following: “Live in London for a year,
and you will not get know much about the English. But through comparison, and in
the light of your surprise, you will suddenly come to understand some of the more
profound and individual characteristics of France, which you did not previously
understand because you knew them too well.” Furthermore, according to Professor
Richard Terrill of Georgia State University, “without such a comparison, we could
be led to a false belief in the necessity and permanency of the status quo” (Terrill,
2005).
The second reason why the study of comparative law will provide further
insight into one’s own country lies in the fact today, in the dawning of the twenty-
first century, many of the established stable democratic legal regimes have already
adopted and borrowed many practices from other countries. Many of these practices
have become ingrained in the comparativist’s home country. For example, most legal
scholars acknowledge that the practice of judicial review, the power of a court to
strike down the actions of the executive or legislative branch as unconstitutional or
illegal, has its origins in the United States. Specifically, the power of judicial review
was acknowledged in one of America’s famous constitutional law cases, namely
Marbury v. Madison in 1803, where Chief Justice John Marshall created this power
for the Supreme Court in the United States. Since that time, many countries from
around the globe have borrowed or adopted this power for their own court system.
As such, like judicial review, today many legal theories and practices originally have
their genesis in the practices of another country. The great English legal historian
F.W. Maitland summarized this point best when he insisted that “the English lawyer
who knew nothing and cared nothing for any system but his own, hardly came in
sight of the idea of legal history.”
Finally, anyone contemplating a course of study in comparative law would do well
to remember Ernst Rabel’s “functional approach.” According to Rabel, one cannot
compare legal rules, institutions or systems in a vacuum, without also understanding
how they function and operate in practice. Furthermore, again according to Rabel,
one cannot understand how certain legal rules or systems function unless one
8 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
considers them in their legal, economic, cultural, social and historical context. Thus
legal norms and rules cannot be fully understood without some knowledge of their
sources, their political, social, and economic purposes—and the general milieu in
which they are created and operate. For example, one could find a divergence of
practice regarding the practice of “free speech” rights between the United States
and Germany. In the United States, as will be discussed more thoroughly in Chapter
One, racist neo-Nazi speech is protected under the First Amendment. However, in
Germany, racist neo-Nazi speech is not only not protected, but engaging in such
speech can be criminal. While the German constitution does generally protect
freedom of speech, Article 18 of the German Constitution goes on to specify that
any of the foregoing rights contained in the constitution are sacrificed/given up if
one attempts to circumvent the democratic order through the practice of such rights.
Article 18 specifically provides that “whoever abuses freedom of expression of
opinion, in particular freedom of the press, freedom of teaching, freedom of assembly,
freedom of association, the secrecy of mail, posts and telecommunications, the
right of property, or the right of asylum, in order to attack the free democratic basic
order, forfeits these basic rights.” Is there a meaningful reason why the German
and American practices are so divergent in terms of the protection (or lack thereof)
of neo-Nazi hate speech? This author, cognizant of Rabel’s admonishment, would
argue that Germany’s law must be viewed through the prism of its experiences in
the Weimar Republic leading up to World War Two. As most students are aware, the
democratic order was originally supplanted by the Nazi party through its abuses—
which were originally cloaked with protection of the law. Thus, the unique Germany
experience explains why Germany has taken a different approach than the United
States as it relates to neo-Nazi hate speech. The comparative law student would
do well to consider the broader societal context and cultural moorings for laws as
well before drawing conclusions about those laws. Again, in the words of Professor
Terrill, “the historical approach prepares students to understand and be a part of a
world of change” (Terrill, 2005).

What is Terrorism?

In a First Amendment free speech case, in trying to articulate a definition/test for

obscene sexual (and unprotected) materials, United States Supreme Court Justice
Potter Stewart was famously declared that “he knows it [pornography] when he sees
it.” However, historically, the definition of terrorism differed widely from person
to person and country to country. The line between legitimate freedom fighters and
legitimate revolutionaries, and nationalistic terrorists is sometimes quite murky. The
American founding fathers that fought the British to form a new government and
country in the new world are revered in the United States today, but members of the
Irish Republican Army (IRA) are viewed by many to be more akin to terrorists—
despite the fact that the broad goals were the same—namely the removal of British
forces. What is the dividing line? Is it the legitimacy of the political cause or the
 Introduction 9
means utilized to achieve the goals that distinguish the group? Yasser Arafat, the
one-time Palestine Liberation Organization (PLO) Chairman, once commented in
speaking to the United Nations General Assembly in 1974, that the means justified
the ends: “The difference between the revolutionary and the terrorist lies in the
reason for which each fights. For whoever stands by a just cause and fights for the
freedom and liberation of his land from the invaders, the settlers and the colonialists
cannot possibly be called terrorist” (Reichell, 2005).
Perhaps the same can be said for the offense of terrorism as U.S. Supreme
Court Justice articulated for pornography, that the “world knows it when it sees
it.” Few would disagree that the events which occurred on September 11, 2001,
in New York City and Washington, DC, in hijacking planes and flying them into
buildings, constituted terrorist acts. At a minimum, the element of violence against
civilians is a common element. Indeed, according to one scholar, “the only general
characteristic [of terrorism] generally agreed upon is that terrorism involves violence
and the threat of violence” (Reichel, 2005). Thus, for many, the dividing line is the
degree to which individuals or groups resort to violence to achieve political goals
outside of the governmental or legal process. One very important distinguishing
factor between the American founding fathers and some contemporary insurgency
groups deals with the tendency to utilize violence against civilian populations or
targets. Famous American President Abraham Lincoln once commented on violence
being the distinguishing factor in referring the radical abolitionist John Brown’s
actions in attempting to overthrow the American institution of slavery by force at
Harpers Ferry, Virginia, in 1859. Lincoln, while agreeing that Brown had “shown
great courage, rare unselfishness,” in trying to extirpate the institution of slavery
by force, nonetheless condemned Brown’s actions as lawless violence. Lincoln
commented as follows shortly after Brown’s execution: “Old John Brown has just
been executed for treason against the state. We cannot object even though he agreed
with us in thinking slavery wrong. That cannot excuse violence, bloodshed, and
treason. It could avail him nothing that he might think himself right.” Thus, the use
of violence against civilian populations would be the germane distinguishing factor.
This would be consistent with the classical definition of terrorism, which defines
terrorism as resorting to or threatening the use of violence in pursuit of political
goals and in opposition to established authority and the laws (Reichell, 2005). This
is also consistent with the U.K.’s definition of terrorism in its 1989 Prevention of
Terrorism Act, which defined terrorism as “the use of violence for political ends and
includes any use of violence for the purpose of putting the public or any section of the
public in fear.” The threat of violence should also be included—as the impact of such
terrorist acts (actual or threatened) is to create “terror” in society—and this result can
flow from the threatened usage of violence just as easily as actual usage. As an aside,
the term “terrorist” was originally used by Edmond Burke to describe the French
revolutionaries (Jacobins), who used the guillotine in part to create an atmosphere
of terror among the populace. So, if one accepts the use of violence as the salient
factor, does this then include all acts of violence? Also, the traditional definition of
terrorism also seems to limit terrorism to those acting for political reasons, and does
10 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
not seem to take into account religious fanaticism. While “religion-inspired terrorism
declined and became displaced by politics,” religious based terrorism has jumped
to the forefront of international terrorist activities. Al-Qaeda, for example, which
means “the base” in Arabic, is a multi-national organization with members from a
variety of countries, and adheres to a largely religious goal, namely the removal of
any influence of Western culture in Muslim countries and a return to strict adherence
to The Sharia. The Council of Europe’s definition of terrorism (put forth by the
Council’s Parliamentary Assembly in 1999) defines an act of terrorism in a more
comprehensive fashion. Terrorism was defined by the Council of Europe as

any offence committed by individuals or groups resorting to violence or threatening to use

violence against a country, its institutions, its population in general or specific individuals
which, being motivated by separatist aspirations, extremist ideological conceptions,
fanaticism or irrational and subjective factors, is intended to create a climate of terror
among official authorities, certain individuals or groups in society, or the general public
(Reichell, 2005).

This definition is more satisfactory than the traditional definition of terrorism

as it expands the element of “acting to achieve political goals” to include those
who act based upon “extremist ideological conceptions, [or] fanaticism or irrational
and subjective factors.” This would clearly include groups like Al-Qaeda who act
based upon religious motivations rather than political ideology. Finally, while many
countries have revised/amended the legal definition of terrorism after 9/11, and have
such definitions in their respective penal codes, a consensus on the correct definition
remains elusive and “there is no single, universally accepted definition of terrorism”
(Reichel, 2005).
It should also be noted that there has been a dearth of actual cases involving
individuals being prosecuted for terrorism. This is true for several reasons. First,
the perpetrators of such acts often perish in the attacks, thus cheating the justice
system and the hangman’s noose. For example, all of the hijackers on 9/11 perished
in carrying out their attacks, leaving no-one to prosecute after the fact. Second, even
if one is apprehended before or during the commission of the act, the charges are
often based upon underlying illegal actions of violence, and not for the offense of
“terrorism.” This is because the sub-elements of the offense of terrorism remain
amorphous and ambiguous at best and the definition remains subjective in terms of
its sub-elements. For example, how much violence is needed for it to be declared a
terrorist act? Is a threat or deprivation of human life needed to meet the definition?
What about actions against property alone? Could members of the Animal Liberation
Front (ALF), People for the Ethical Treatment of Animals (PETA), or Greenpeace,
be declared terrorists if the organization advocates freeing animals who are subject
to inhumane treatment (given that animals are considered chattel and property)? It is
also because many countries, like Spain, Germany and Japan for example, chose to
try terrorists under the applicable criminal code violations (e.g., homicide, battery,
kidnapping, et cetera), and not based upon the charge of “terrorism.”
 Introduction 11
These problems in definition often lead countries to prosecute individuals for
underlying criminal offenses, rather than on the politicized offense of “terrorism.” For
example, the single bloodiest attack on citizens on U.S. soil prior to 9/11 occurred on
April 15, 1995, when Timothy McVeigh detonated a bomb and destroyed a portion
of the federal Murray Building in Oklahoma City, Oklahoma, causing the death of
168 individuals. By virtually all accounts, McVeigh had political goals in mind when
he planned and carried out this act of violence. He was specifically acting in regards
to what he thought was a tyrannical federal government. He targeted federal offices
in the Murray Building as retaliation for injustices he believed occurred two years
earlier on April 19, 1993, by two federal law enforcement agencies in relation to a
fringe religious group (the Branch Davidians) at Waco, Texas. Yet, despite meeting
the traditional definition of terrorism, McVeigh was tried not for domestic terrorism,
but rather a variety of criminal law offenses, such as multiple counts of first-degree
homicide for killing federal officers, the use of a weapon of mass destruction, and
the conspiracy to use a weapon of mass destruction.
Thus, historically, in the United States and in many other countries, terrorism was
more a political term, than an offense that was utilized in the criminal justice system
by prosecutors, judges and juries. Furthermore, treating terrorism as a political
offense allows for a two-fold response, one within the domestic court system (for
lesser offenses) and one on the international/political plane. Thus domestically, when
a “terrorist” like McVeigh was apprehended, the criminal charges in the domestic
system would be based on the underlying violent acts which were committed (e.g.,
homicide, arson, use of explosives, et cetera), rather than an amorphous charge of
terrorism. Yet, given the political dimensions of terrorism and the political aims of
those committing violent acts, many countries have sought extra-territorial responses
to the threat of terrorism, including the use of its armed forces. The United States,
for example, has liberally deployed its military to combat terrorism abroad, as part
of a “global war” on terrorism. For the United States, as the goal of terrorism is to
weaken the country’s security and peace, it is proper to take actions consistent with
national security.
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 Chapter One

The United States

Homeland Security and Anti-Terrorism Legislation in the United States Prior

to 2001: A Brief History

One can trace anti-terrorism legislation in the United States back to the dawn of the
country’s existence, long before its independence as a country and during its early
colonial era. Indeed, one author (Bruce Maxwell) asserts that the first terrorist or
“homeland security incident” occurred in 1607, only months after the first permanent
English settlers arrived in the New World” at Jamestown, when one of the Jamestown
Colony leaders (James Kendall) was tried and executed for some crime threatening
the existence of the colony. Maxwell writes that while the charges against Kendall
are unclear—and “may have been mutiny, spying for Spain, or ‘sowing discord’
among the settlers”…he was ultimately “executed because the jury believed that
he threatened the security of the precarious ‘homeland’ established at Jamestown”
(Maxwell, 2004).
While there presumably existed a variety of laws during the colonial and
revolutionary period which could be classified as laws defending the homeland, the
first major law passed by Congress after the United States’ independence dealing
with what could be called homeland security and/or anti-terrorism legislation
was the Alien and Sedition Acts in 1798. Interestingly, these laws very quickly
undermined any notion of the First Amendment and free speech being absolute.
The language in the First Amendment specifying that “Congress shall make no
law…involving the abridgement of freedom of speech,” clearly did not mean “no
law,” as the Alien and Sedition Acts were promulgated within seven years of the
ratification of the First Amendment in 1791. The political atmosphere in the John
Adam’s administration was very vitriolic and acrimonious. The press was very
partisan, and multiple derogatory and inflammatory articles about one political
party or the other appeared on a daily basis throughout the nation. During this
political discord and upheaval, the Federalist controlled Congress, in concert with
Federalist party President John Adams, passed the two different laws, referred
collectively at the time (and now) as the Alien and Sedition Acts. While the laws
were viewed as a means to combating domestic upheaval caused by newly arrived
immigrants—and authorized the President to remove any alien deemed “dangerous”
to the peace and security of the United States, the laws were also clearly politically
motivated, as most immigrants associated with the opposition party (Thomas
Jefferson’s Republican Democrats) and very politically implemented and enforced,
as most prosecuted and/or deported under the Acts were opposed to the Federalist
14 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Party. Furthermore, the implementation of the law by the Federalist Party reflected
hostility towards France and Ireland, as the Federalist favored relations with Great
Britain, while the Republican-Democratic Party favored relations with France.
Immigrants from France and Ireland were those targeted under these laws, while
English immigrants generally were not.
Because the Acts collectively dealt with dealing with immigrants/aliens
“dangerous” or being an “enemy” of the United States, and the government’s
ability to deal with such dangerous individuals, the Alien and Sedition Acts are
oft described as America’s first experiment with anti-terrorism/homeland security
legislation. Indeed, consistent with anti-terrorism legislation today, changes in
immigration and deportation proceedings were a major aspect of these early laws.
Specifically, the Alien Acts (itself two laws—the Alien Enemy Act and the Alien
Act) authorized the President to detain and deport any alien deemed dangerous,
both in war and peacetime (the Alien Act), and authorized the President to detain
and/or deport any alien who originated from a country in which the United States
was engaged in hostilities (Alien Enemy Act). Professor Peter Irons has written
that within days of passage of the Act, “two shiploads of French citizens promptly
sailed for their homeland to escape jailing and forced deportation” (Irons, 1999).
The Alien Act was given full meaning by another law passed at the same time,
the Naturalization Act. The Naturalization Act provided that an Alien could only
obtain citizenship after living in the United States for fourteen years, instead of
five years. Thus, under the terms of the Alien Act, it meant that a non-citizen living
in the United States would have been subject to detainment and/or deportation for
up to fourteen years—and could be removed at any point for activities deemed
“dangerous” by the executive.
In essence, the Sedition Act made it a crime to criticize the government. The law
specifically provided, in part, as follows:

That if any person shall write, print, utter or publish, or shall cause or procure to be
written, printed, uttered or published, or shall knowingly and willingly assist or aid in
writing, printing, uttering or publishing any false, scandalous and malicious writing or
writings against the government of the United States, or either house of the Congress of
the United States, or the President of the United States, with intent to defame the said
government, or either house of the said Congress, or the said President, or to bring them,
or either of them, into contempt or disrepute; or to excite against them, or either or any of
them, the hatred of the good people of the United States, or to stir up sedition within the
United States, or to excite any unlawful combinations therein, for opposing or resisting
any law of the United States, or any act of the President of the United States, done in
pursuance of any such law, or of the powers in him vested by the constitution of the United
States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any
hostile designs of any foreign nation against United States, their people or government,
then such person, being thereof convicted before any court of the United States having
jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and
by imprisonment not exceeding two years.
 The United States 15
On its face, the law was in direct contravention of the language of the First
Amendment to the Constitution, which declared that “Congress shall make no law…
abridging the freedom of speech, or of the press.” Immediately following enactment,
several prominent prosecutions under the act ensued, all against prominent supporters
of Thomas Jefferson, and most of them journalists who wrote articles critical of
the government, including James T. Callender, William Duane, Matthew Lyon,
and several others. Matthew Lyon, for example, was a member of the U.S. House
of Representatives from Vermont and a member of the Jeffersonian Republican-
Democratic party. Lyon’s crime was writing a letter (which was published in the
local press) stating that President Adams had a penchant for “unbound thirst for
ridiculous pomp, foolishness adulation and selfish avarice,” and that he was always
concerned with “a continuous grasp for power” (Irons, 1999). Lyon was prosecuted
and convicted of sedition and received a sentence of four months imprisonment. At
trial, his lawyer was not even allowed to make a defense on behalf of Congressman
Lyon. Quite ironically, while sitting in jail serving his four month sentence, the
Vermont citizens re-elected him to Congress by a landslide against his Federalist
opponent (Irons, 1999).
Several unique attributes of the Sedition Act should be briefly referenced which
illustrate the blatant political usage of a law passed under the guise of what today would
be called homeland security/anti-terrorism legislation. First, the Act omitted the Vice
President from being covered under the Act. This is significant as Thomas Jefferson,
the leader of the “opposition” party, also served as Vice President to John Adams.
So, under the Act, one could criticize the Vice President with impunity, but not the
President. Secondly, the Sedition Act specified that the “Act shall continue and be in
force until the third day of March, 1801, and no longer.” This expiration date would
conveniently arrive immediately following the next Presidential election between
Thomas Jefferson and John Adams, and after the next Presidential inauguration.
Thus, under the terms of the act, one could not criticize the current President or his
policies or actions until after the next election, but again could criticize the Vice
President with impunity. Finally, the perceived injustice with these Acts led several
states (notably Virginia and Kentucky) to pass laws requiring the states to ignore
any unconstitutional federal laws. The Virginia and Kentucky Resolutions would
eventually be utilized for legal authority by South Carolina in the nullification crisis
of the 1830s and southern states in seceding from the Union in 1861, which in turn
led to the American Civil War. Thus, one could argue that Alien and Sedition Acts
(and the notion that States could reject federal laws as embodied in the Virginia
and Kentucky Resolutions) as one of the many factors which eventually leads the
United States to Civil War approximately sixty years later. Also, as author Bruce
Maxwell points out, “since Congress passed the USA Patriot Act in October 2001,
several state legislatures and hundreds of local governmental bodies have adopted
resolutions challenging the USA Patriot Act on virtually the same grounds as those
cited in 1798” (Maxwell, 2004).
However, despite the best efforts of the Federalists, the laws eventually backfired
and public dislike of these laws was a factor leading to the election of Thomas
16 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Jefferson over John Adams in 1800 for President of the United States. Further,
according to the terms of the Acts, the laws expired in 1801, and of course, the
President Thomas Jefferson and his Republican-Democratic controlled Congress,
made no effort to renew these laws. The Naturalization Act (which did not have an
expiration date) was repealed by Congress in 1802. Thus, all of these laws expired
and/or were repealed during the Jefferson administration, and the Supreme Court
never had the opportunity to review the constitutionality of these laws. However,
in recent years, in dicta, the Court suggested the unconstitutionality of the laws,
commenting that “although the Sedition Act was never tested in this Court, the
attack upon its validity has carried the day in the court of history.” While this be,
the obvious defects on its validity has not prevented Congress “in the intervening
years…[from] repeatedly pass[ing] new variations of the Alien and Sedition Acts”
(Maxwell, 2004).
Another early example of anti-terrorism/homeland security legislation came at
the beginning of the twentieth century in 1917 with the passage of the Espionage
and Sedition Acts. In the years leading up to passage of this legislation, the United
States absorbed a huge influx of European immigrants, many of which came from
the Eastern European countries of Russia and Italy. Many of these new immigrants
brought some of the novel political concepts blossoming in Europe—political
philosophies such as socialism, communism and anarchy. While certainly a majority
of immigrants during this time period (including the author’s great grandfather)
assimilated into America’s existing political/democratic structure, some did
refuse. Several other events at the time brought suspicion upon these immigrants
with political views which differed from an adherence to capitalism and popular
democracy. First, in 1901, President William McKinley was assassinated by an
avowed anarchist. Second, when revolutions broke out in Russia and Italy and
Spain, based upon Bolshevik and Marxist beliefs, many Americans began looking
at foreigners with suspicion, and viewed political concepts from these countries
as being dangerous.
Thus, when the United States joined allied forces in World War I, Congress
passed the Espionage and Sedition Acts in 1917 and 1918, respectively. These
war time measures were certainly adopted to suppress opposition to the United
States war effort, but also had the effect of silencing dissension at home. As the
name implies, part of the Espionage Act dealt with the exposure and transmission
of sensitive information about the military. However, the law also outlawed all
intentional attempts at causing insubordination, disloyalty, mutiny, or the refusal
to serve, among members of the United States Army. The law was executed and
enforced by the police against any individual who uttered or published messages of
an anti-war, anti-draft, or anti-military variety. Many Americans were prosecuted
under this act and about a dozen or so cases eventually were appealed up to the
United States Supreme Court. Several very prominent Supreme Court cases resulted
from the various prosecutions under the Act, or state law versions of this federal
legislation, including cases such as Gitlow v. New York, Schenck v. United States, and
Abrams v. United States (discussed below). In the first two years after the law was
 The United States 17
enacted, it has been reported that over 2,000 citizens were prosecuted and convicted.
Another 248 individuals were deported to Russia after conviction. As illustration
of the draconian enforcement, it was also reported that on one night, on November
7, 1919, approximately 10,000 individuals around the country in twenty-three
different cities were arrested without judicial warrants. On January 2, 1920, another
6,000 arrests were made, again without warrants, in another nationwide raid which
became known as the Palmer Raids. These raids, which were planned by Attorney
General Alexander Palmer and his young protégé, J. Edgar Hoover (who would
himself preside over the Federal Bureau of Investigation for decades as its Director),
illustrates how forcefully the laws were applied by the police. The incidents also
illustrate the potential for abuse. In collecting and organizing personal information,
it was during this time period that Hoover created a massive card index system with
people who held what Hoover thought were left wing views and theories. In the early
1920s alone, Hoover was said to have a little under one-half million names (with
corresponding biographical and intelligence data) in his indexed cards. Of the one-
half million, about 60,000 were targeted for surveillance and arrest by Palmer and
Hoover. Hoover would maintain and expand his database on hundreds of thousands
of American citizens between this era and his death in 1972.
Perhaps one of the most well known and prominent Americans were prosecuted
under this Act as well, the Presidential candidate Eugene Debs, who received
approximately 100,000 votes for President while in prison on sedition charges.
While campaigning for President in June 1918, Debs made a speech in Canton,
Ohio, which, in part, was critical of the Espionage Act, and obliquely referenced the
military. Plain clothes detectives were in the crowd and assigned to follow Debs in
the hope he would say something that might be actionable under the Espionage and
Sedition Acts. The portion of Debs’ speech which prompted prosecution under the
Espionage Act was as follows:

The other day they sentenced Kate Richards O’Hare to the penitentiary for five years.
Think of sentencing a woman to the penitentiary simply for talking. The United States,
under plutocratic rule, is the only country that would send a woman to prison for five
years for exercising the right of free speech. If this be treason, let them make the most of
it…They simply mean to silence the voice of protest during the war.

Debs was arrested, prosecuted and convicted under the Act, and was sentenced to
ten years in an Atlanta Penitentiary.
The Sedition Act was equally draconian as it related to political dissension and
free speech. The Sedition Act, like the Sedition Act of 1798 some years before, made
it crime to speak out against the United States government. The law provided, in
part, as follows:

The willfull writing, utterance, or publication of any disloyal, profane, scurrilous, or

abusive language about the form of government of the United States , or the Constitution
of the United States, or the military or naval forces of the United States, or the flag of the
United States, or the uniform of the army or navy of the United States, or any language
18 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
intended to bring the government of the United States, or the Constitution of the United
States, or the flag of the United States, or the uniform of the army or navy of the United
States into contempt, scorn, contumely, or disrepute is hereby declared unlawful.

Despite the fact that these laws arguably represent the most powerful and forceful
restrictions on free speech and press, a majority of Americans were in support of
the laws and the police enforcement of these laws. It has been reported that even
major newspaper chains like the New York Times supported the laws, calling for the
“punishment for the disloyal” and even advocated that the death penalty be applied
in certain cases. Like perhaps the post 9/11 world, a majority of politicians and
Americans had little reservations about taking very strict measures to protect the
homeland from subversives and ensure peace and domestic tranquility within the
United States.
Furthermore, the Supreme Court during this time period largely acquiesced with
the actions of the federal government, and did not interpret such laws as being in
contravention of the First Amendment. First, in Schenck v. United States, in what
became known as the “bad intent” or “bad tendency” test, the Supreme Court held
that words or writings could be declared criminal by the government (and not be
in violation of the First Amendment) so long as the utterance of the words has a
tendency to create harm, or was intended by the speaker/writer to create harm.
Thus, according to the Court in Schenck, the utterance of the words alone could be
criminalized, and the proof of the likelihood of harm to society by the words need
not be shown by the government. The Schenck case involved the prosecution and
conviction of Charles Schenck under the Espionage Act of 1917. Schenck, who was
president of the Philadelphia Socialist Party, was guilty of mailing out leaflets urging
men to avoid the draft. The leaflets also discussed how brutal the war in Europe was
in terms of death and destruction, and recommended the people petition their elected
representatives for repeal of the draft act. As the intent of Schenk was undoubtedly to
diminish the number of individuals fighting pursuant to the draft, he was convicted
under the Espionage Act and his conviction was affirmed by the Supreme Court. In a
decision authored by famous Supreme Court Justice Oliver Wendell Holmes, Jr., the
Court likened the leaflets to “yelling fire in a crowded theatre,” and held that speech
may be curtailed in times of peril (like wartime) when the words might cause clear
and present danger to others. The decision also stood for the proposition that the
rules for freedom of speech might be different in times of war. The Schenck decision
remind in effect and the law in the United States from 1919 until 1969.
Six months after the Schenk decision, the Supreme Court again had the chance
to review the constitutionality of the Espionage Act in the case of Abrams v. United
States. In Abrams, the Court reviewed the constitutionality of the conviction of
Abrams and a group of young immigrants from Russia under the Espionage Act.
Abrams and the others had printed and distributed two pamphlets that urged
munitions plant workers in New York to go on strike in protest to the World War.
While it is arguable how many workers would have read or even followed the advice
in the pamphlets, the intent of Abrams and the others were clearly to weaken the war
 The United States 19
effort (even by a strike at one munitions plant). Thus, the Court easily upheld the
convictions, citing to Justice Holmes’ opinion in the Schenck case six months before.
However, the Abrams case is notable for the dissenting opinion by the same Justice
Holmes and the dissenting opinion is one of the most oft quoted opinions in the area
of First Amendment law.
Despite the fact that Holmes had authored the Schenck opinion six months before,
Holmes had widely communicated with many legal scholars during the ensuing
months, and had decided to change his opinion on the matter. Thus, in the Abrams
case, Holmes dissents from his own rule he crafted six months before, and articulates
what he believed ought to be the correct legal test. Holmes argued that the pamphlets
at issue in Abrams were “poor and puny anonymities by ignorant and immature
persons” that would hardly impact the war effort of the United States. Holmes
further noted that every idea, taken to its extreme, could constitute an incitement
and that Congress should not punish individuals for every idea which is antithetical
to the government position. Holmes then famously declared that “the best test of
truth is its ability to be accepted into the marketplace of ideas,” and that ultimate
societal good is best achieved by a free market trading in ideas. In coming to his test,
Holmes opined that Congress should only criminalize speech when the words would
“imminently and immediately” threaten the country. Thus, according to Holmes’
“imminent and immediate danger” test, a speaker or writer should not be arrested
or detained by the government unless the speech has an imminent and immediate
adverse effect on the government. The ultimate importance of the Holmes dissent
is that it would be adopted as the operative legal test a half century later in 1969 in
Brandenburg v. Ohio. However, until 1969, the Schenk decision would continue to
allow the thousands of prosecutions of individuals under federal and state sedition
laws simply upon “bad intentions” alone.
Another early Supreme Court case that illustrates the Supreme Court’s bad
intentions, or bad tendency test, which was in place from 1919-1969, is the case of
Gitlow v. New York, 268 U.S. 652 (1925). The case is constitutionally significant
within the United States today, as this case is represents the first time that the Supreme
Court indicates that state governments of the United States must follow and adhere
to the Bill of Rights (i.e., the first ten amendments of the U.S. Constitution). Prior to
that point, the Bill of Rights was considered only to be a restriction on actions of the
federal government. This meant that prior to 1925 state governments could pass any
law it wished regarding the abridgement of free speech or free press, for example,
so long as the restrictions were not a violation of state constitutional provisions.
The Supreme Court had previously held, quite famously, in Barron v. Baltimore,
32 U.S. 243 (1833), that the Bill of Rights were inapplicable to state governments.
However, in the Gitlow case, the Supreme Court held for the first time that states
need also to comply with the Bill of Rights (the freedom of speech provision of the
First Amendment in the Gitlow case). At issue in the case was the constitutionality
of the conviction of Benjamin Gitlow, who was a leader in the American Communist
Party in New York. Gitlow’s crime was in publishing and distributing approximately
15,000 leaflets entitled the “Left Wing Manifesto,” and which called for labor
20 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
strikes in the United States, and mass protests “having as it objective the conquest
of the power of the state.” Gitlow was subsequently arrested by law enforcement
officials in New York and charged with violating New York’s sedition and criminal
anarchy laws, specifically in advocating the overthrow of the government by force
or violence. Ironically, while the Supreme Court notably held that New York sedition
laws must comply with the freedom of speech and press protections contained in the
First Amendment, the Supreme Court nevertheless went on to hold that New York’s
prosecution and conviction of Gitlow was proper under the “bad tendency” test of
the Court. The Court specifically held that Gitlow’s words alone raised a “clear and
present” danger to the security of the United States.
While the Espionage and Sedition Acts were passed during time of war,
individuals continued to be prosecuted under like federal laws, or similar state laws,
in the 1920s and 1930s. Then, in 1940, another major federal statute was enacted,
the Alien Registration Act, which would continue to fuel prosecution of subversives
in the name of homeland security well into the 1960s. The Alien Registration Act
was referred to as the Smith Act because the “sedition” section on the law was
authored by Congressman Howard Smith from Virginia. The Smith Act, like the
Sedition Act of 1918, made violations subject to a potential punishment of twenty
years incarceration. The Smith Act made it criminal to publish, advocate, or teach
with the intention to seek the overthrow or destruction of the United States, or any
of its various governments (federally or on the state level). The Smith Act was
utilized during the McCarthyism Era and beyond to prosecute thousands of alleged
communists in the 1950s and 1960s. Operative portions of the Smith Act are as
follows:

§ 2385. Advocating Overthrow of Government.

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity,
desirability, or propriety of overthrowing or destroying the government of the United States
or the government of any State, Territory, District or Possession thereof, or the government
of any political subdivision therein, by force or violence, or by the assassination of any
officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government,
prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written
or printed matter advocating, advising, or teaching the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or
violence, or attempts to do so; or
Whoever organizes or helps or attempts to organize any society, group, or assembly of
persons who teach, advocate, or encourage the overthrow or destruction of any such
government by force or violence; or becomes or is a member of, or affiliates with, any
such society, group, or assembly of persons, knowing the purposes thereof…
As used in this section, the terms “organizes” and “organize”, with respect to any
society, group, or assembly of persons, include the recruiting of new members, the forming
of new units, and the regrouping or expansion of existing clubs, classes, and other units of
such society, group, or assembly of persons.
 The United States 21
Shortly after the initial enactment of the Smith Act, perhaps the most pernicious
incident of protecting the homeland at any cost (with definite racial overtones)
occurred with the implementation of the Japanese-American internment camps
during World War II. The internment of over 120,000 individuals in the United
States during World War II had its genesis shortly after Japan’s attack on U.S. Naval
facilities at Pearl Harbor, Hawaii, on December 7, 1941. Similar to the hysteria over
individuals of Arab descent in the United States shortly after 9/11, many Americans
in 1941 expressed grave distrust of individuals within the United States of Japanese
descent. As a result, within two and half months of the attacks at Pearl Harbor, on
February 19, 1942, President Franklin D. Roosevelt issued Executive Order 9066.
While Executive Order 9066 did not expressly reference individuals of Japanese
descent in the order, it did provide that the secretary of war and subordinate military
commanders could designate certain areas “from which any or all persons may
be excluded…” Unfortunately, within weeks of this order, military commanders
issued a bevy of orders excluding any individual of Japanese descent from living
or traveling on the West Coast. For example, the order of Lieutenant General John
DeWitt ordered on May 3, 1942, the evacuation of “all persons of Japanese ancestry,
both alien and non-alien,” from Los Angeles, and that these individuals report to
control stations by May 5, 1942, to then be transported to internment camps. These
camps were guarded by military police and surrounded by chain link and barbed
wire fence. Within two days, thousands and thousands of American citizens were
forced to relocate to these “civil control stations” with only possessions they could
carry with them—with other provisions in the order mandating that “no personal
items and no household goods” (beyond what one could carry) and “no pets of any
kind will be permitted.” Over 120,000 individuals were ultimately detained under
such orders, and many remained in the camps until when the orders were lifted in
January 1945.
Almost as infamous as the internment of Japanese Americans was the United
States Supreme Court’s reaction to the detentions in the case of Korematsu v. United
States, 323 U.S. 214, decided on December 18, 1944. The Supreme Court, in
reviewing the constitutionality of the detention order, upheld the order concluding
that the “exclusion from a threatened area…has a definite and close relationship
to the prevention of espionage and sabotage” and that such orders were justified
under concerns for national security. The decision has “been roundly criticized as
the culmination of one of the bleaker examples of the failure of the federal courts to
protect U.S. citizens from disparate treatment on the basis of their national origin”
(Haridakis, 2004). Even at the time, three justices dissented, writing words of
stinging rebuke. Justice Robert Jackson, in words that could equally apply to the
use of racial profiling in defense of homeland security in the twenty-first century,
commented that the decision was “a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an urgent need.” Justice Murphy
argued that the government action “falls into the ugly abyss of racism,” and that the
government’s rationale for passing the law was “largely an accumulation of much
of the misinformation, half-truths, and insinuations that for years have been directed
22 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
against Japanese Americans by people with racial and economic preferences.” The
Courts’ decision, according to Murphy, amounted to the “legalization of racism.”
It should be noted that while the United States government apologized and
approved reparations payments of $20,000 to surviving members in the 1980s by
virtual of the Civil Liberties Act of 1988, the government apology and recrimination
came over three decades after the internments. The internment camps were, in the
words of President Ford in 1976, “a national mistake.” However, the camps and the
resulting Korematsu decision stand today as a reminder of risks of passing homeland
security measures based upon frenzied concerns of national security and xenophobic
and racist misinformation. As Congress stated in section 2 of the Civil Liberties Act
of 1988, the camps were a “grave injustice” and “were carried out without adequate
security reasons and without any acts of espionage or sabotage…, and were motivated
largely by racial prejudice, wartime hysteria, and a failure of political leadership.”
Interesting, immediately after 9/11, in a Los Angeles Times Poll, “nearly seven in ten
favored letting police use racial profiling to randomly stop people who shared the
physical characteristics of the September 11 hijackers.” Further, as part of a stepped
up law enforcement investigation in the months following 9/11, “officers arrested
more than 1,200 people—almost all of them men of Middle Eastern or South Asian
descent—on suspicions they were terrorists or were witnesses to terrorist activities”
(Maxwell, 2004). The acceptance of reliance on profiling to single out individuals of
Middle Eastern descent seems strongest when dealing with air travel or movement
across the nation’s borders.
At about the time the Smith Act was enacted, the Government passed other laws
regarding the threat (scare) of communism, including laws requiring loyalty oaths
for employment, the Internal Security Act of 1950, and the Communist Control Act
of 1956. Many states passed similar laws at the state level. Hundreds and hundreds
of Americans were prosecuted during this “red scare” time period, and many more
(such as directors and actors in Hollywood) were blacklisted and made pariahs of
society. Under the terms of the Smith Act, college professors were also a target,
as the definitional section of the Act made clear that the term “organize” included
the teaching of classes—which meant that any professor espousing the virtues of
communism were considered fair game by the FBI. A prominent American writer and
professor once wrote that during this period “moral cowardice and personal safety
and corruption and self-doubt and unlimited greed became national characteristics
and national virtues. No one knew how to act. It was not an era of clear thought”
(Brodkey, 1995). This quotation illustrates how the total consummation of fears
regarding safety and self-doubt can lead to problems of much greater magnitude.
Despite the hundreds and hundreds of prosecution, and the fact that several cases
did percolate up the U.S. Supreme Court for review, the Supreme Court did not
alter its “bad intent” test first declared in the 1919 Schenck case. For example, in the
first major case involving the constitutionality of the Smith Act—Dennis v. United
States (1951), the Supreme Court held that the government needs to wait until the
threat or danger is at hand, and therefore is vested with the authority to stop the
danger at its earliest stage in order to protect the homeland. The Court again applied
 The United States 23
the Schenck “bad intent” or “bad tendency” test, and held if the end is punishable
(namely the destruction or overthrowing of the government), then the means of
reaching this goal (namely advocating, enticing, organizing, teaching, et cetera) can
also be criminalized. Justice Hugo Black, like Holmes a quarter century before in
Abrams, dissented and argued that the threat against civil liberties and democracy is
greater than any threat posed by communists. Furthermore, the notion of combating
of communism through the restriction of free expression basically throws the “baby
out with the bathwater.” Finally, Black argued that the restrictions on civil liberties
are partly the result of the hysteria, saying that “there is hope that in calmer times,
when present pressures, passions and fears subside, that this or some later Court will
restore the First Amendment to its high position where it belongs in a free society.”
However, after another six years of zealously prosecuting those suspected of
being subversive and communist, the Supreme Court foreshadowed a change in its
interpretation of the constitutionality of laws attempting to restrict First Amendment
freedoms under the name of homeland security. The case of Yates v. United States
dealt with numerous convictions of communist party members under the Smith
Act. The Supreme Court ruled in Yates that the First Amendment does not permit
government criminalization for the advocacy of political ideas alone. Rather, the
government can only prosecute those under the Smith Act who engage in the
advocacy of illegal action. The Yates decision stopped the prosecution of individuals
for communist party membership alone, and the government had to show the alleged
communist had advocated illegal action if it wished to prosecute under the Smith
Act. As the Yates decision overturned the convictions of multiple individuals who
were convicted of being communists, the date the Court handed down the decision
(June 17, 1957), became known as “Red Monday” in some circles.
Twelve years after the Yates decision, the Supreme Court finally accepted the
position argued by Justice Oliver Wendell Holmes, Jr., in his dissent in the Abrams
case in 1917. The case of Brandenburg v. Ohio (1969) factually involved a rally/
meeting of a racial hate group, the Ku Klux Klan (KKK), a group which adheres to
a Nazi-like view of racial supremacy of Aryan individuals, while insisting on the
inferiority of a whole host of different groups, including all non-white racial groups,
as well as those of the Catholic and Jewish faiths. At this rally, the leader of the group
(Brandenburg) had made threats against the government and burned a Christian cross
during the rally. State of Ohio officials then stepped in and arrested Brandenburg
under a state “incitement to violence” statute. In reviewing of the constitutionality
of this law, the Supreme Court adopted Holmes’ requirement that the words must be
coupled with the likelihood of imminent/immediate lawless action in order for the
words to be subject to criminal prosecution. Thus, the Court in Brandenburg held
that uttering or publishing words hostile to the United States or its government can
only be criminalized when the words are uttered are directed towards the producing
lawless action, and the words are likely to imminently incite/cause such action. As of
2006, the Brandenburg decision remains the chief test for the constitutionality of the
abridgement of freedom of expression in the name of protecting the homeland and
preventing harm by those who are intent on causing damage to the United States.
24 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
During the turbulent 1960s and 1970s in the United States, with contentious
domestic issues involving civil rights and the Vietnam War, the FBI and CIA were
utilized to conduct investigations on Americans. A series of abuses committed by the
FBI and the CIA were documented in such well known U.S. Senate investigations as
the Rockefeller Commission Report on CIA Activities (June 6, 1975) and the Senate
Select Committee to Study Governmental Operations with Respect to Intelligence
Agencies (known more commonly as the Church Committee Report on Rights
Violations by Intelligence Agencies) (April 26, 1976). The Church Committee
Report noted numerous abuses and commented that “U.S. intelligence agencies had
routinely and wantonly violated the civil liberties of Americans during domestic
intelligence investigations. The FBI was one of the main culprits” (Maxwell, 2004).
As a result of these damning reports of governmental abuses, and wiretapping
allegations involved in the Watergate scandal, the Attorney General issued new
restrictive guidelines on surveillance of Americans. Furthermore, in 1978, Congress
passed the Foreign Intelligence Surveillance Act (FISA), as the “exclusive means
by which electronic surveillance” could be collected. The FISA legislation created
a secret court comprised of a handful of federal district court justices (appointed by
the Chief Justice of the U.S. Supreme Court), which was charged with overseeing
requests from intelligence and law enforcement agencies to conduct electronic
surveillance (which originally meant phone taps, but which was expanded to allow
for e-mail and physical searches, as well). Despite the fact that the FISA court “has
been a virtual rubber stamp for government requests” (“in the more than 18,000
known cases, there have been only five refusals to authorize surveillance”) (Ratner
& Miles, 2006), the Bush administration has argued that it has the constitutional
authority (presumably under the Commander-in-Chief clause of the Constitution)
to conduct surveillance without the required FISA court order. This administration
position prompted five former FISA judges to testify to Congress in protest in April
2006, including one who recently resigned from the FISA court over protest with
the Bush position. In April 2006, the administration disclosed to Congress that the
FISA court approved 2,072 warrants during 2005 for the FBI to conduct surveillance
on U.S. citizens via secret wiretaps and electronic and/or physical searches. The
number of warrants approved in 2005 was the highest amount ever approved by
the FISA court, and is approximately twice as much as were issued in 2000, the
last complete year before 9/11 and Bush’s subsequent “war on terror” (Sherman,
2006). Perhaps it is a reflection of the different world post 9/11, but it is interesting
to note that the two U.S. Attorney Generals since 9/11 (John Ashcroft and Alberto
Gonzales) have both brazenly asserted that the FBI needs the freedom to conduct
such investigations, freedom that was removed because of FBI/CIA abuses for
several decades culminating in the late 1970s.
While Americans have always been warily of terrorist acts abroad, especially
after heinous attacks upon Americans at the Beirut compound in 1983 (killing 241
American service members) and the bombing of the 1988 Pan Am Flight 103 over
Lockerbie, Scotland (killing 270 people, including 189 Americans), there was a
sense that these attacks occurred elsewhere and not on U.S. soil. This mindset began
 The United States 25
to slowly change in the 1990s, primarily with two terrorist attacks, the attack on the
World Trade Center masterminded by Ramzi Yousef in 1993, and the bombing of the
federal Alfred P. Murray Building in Oklahoma City, Oklahoma, on April 19, 1995.
Indeed, after the bombing of the Murray Building in Oklahoma City, Oklahoma, in
April 1995, the Los Angeles Times reported that approximately forty-eight percent
of the individuals polled thought that civil liberties should generally give way to
law enforcement needs in fighting terrorism. The notion of giving law enforcement
more tools was the motivation in first proposing the legislation which would become
the Anti-Terrorism and Effective Death Penalty Act of 1996. Anti-Terrorism and
Effective Death Penalty Act of 1996 was the first attempt to comprehensively deal
with anti-terrorism. It was passed after several major events involving homeland
security in the 1990s in the United States—namely the first World Trade Center
Bombing in 1993 and the bombing of the Murray Building in Okalahoma City in
1995. The act that eventually passes was a watered down version of the original
bill. One of the main reasons why this occurred is because at the same time this
bill was pending, Congress was also investigating alleged misconduct of federal
law enforcement (ATF and FBI) for its handling of the religious compound (Branch
Davidians) in Waco, Texas, in February and April 1993. When the occupants of
the compound would not surrender to law enforcement after a fifty-one day
standoff, the FBI injected tear gas in the hopes that the occupants would flee the
compound. Instead, the Branch Davidians committed mass suicide by setting the
building on fire. As a result, over eighty people perished. Thus, in 1996, some in
Congress did not wish to give federal law enforcement additional powers under the
1996 Anti-Terrorism Act, when it was reviewing alleged federal law enforcement
misconduct and alleged abuse of authority in the Waco incident. However, many of
the provisions pulled out of the 1996 legislation, would find its way into federal law
via the Patriot Act in 2001. For example, some of the provisions relating to access
to banking financial records (via subpoena) would not be added until after 9/11 and
the subsequent passage of the Patriot Act. Somewhat ironically, several prominent
lawmakers who were opposed to giving federal law enforcement more powers in
1996 were adamant supporters of giving federal law enforcement the same powers
in 2001. For instance, then-Missouri Republican Senator John Ashcroft opposed
many of the more stringent measures in 1996, but wholeheartedly supported such
measures in the Patriot Act in 2001 as Attorney General.
Most notably, the 1996 put into effect new rules attempting to thwart the
operation of terrorist organizations. First, the Secretary of State was empowered
to designate groups as “terrorist organizations” if the group’s activities threatened
the peace and security of U.S. citizens, or the United States itself. Second, the law
attempts to tighten the noose financially on terrorist organizations by prohibiting
the financing of these organizations by individuals—or more correctly, expanding
the prohibition to include humanitarian assistance given to these groups. Congress
previously made the financial support of terrorist organizations a criminal offense in
the Export Administration Act. However, the 1996 legislation expands the prohibition
to include financial support in the form of humanitarian assistance (excluding the
26 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
supply of medicine or religious materials). Financial institutions were also obligated
to notify the Secretary of State if they learned that they were in possession of terrorist
organization funds/accounts.
The third major aspect of the 1996 act dealt with the revision of immigration
measures. Specifically, the law empowered the then-Immigration and Naturalization
Service (INS) to refuse asylum or citizenship requests from any member of a
terrorist organization. The law allowed INS to deny asylum/citizenship on account
of individual’s association with a particular group—even though the individual may
not have ever acted in furtherance of the group’s goals. Very significantly, the act
also created a special federal court which could utilize “secret evidence” in making
deportation decisions. Specifically, the act directed the Chief Justice of the United
States Supreme Court to select five district court judges from five different judicial
districts to create a special removal court. Further, the law allowed for any single
judge in these removal cases to consider evidence and testimony provided in camera
or in an ex parte fashion in reaching a removal decision. This provision allows the
government to utilize what has been described as “secret evidence” in deportation
proceedings if the person is believed to be a member of a terrorist organization.
Fourth, the act reiterated that it was the view of Congress that the President
should “use all necessary means, including covert action and military force, to
destroy international infrastructure used by international terrorists.” Thus, even if
Congress would not have passed a resolution in support of military actions against
the Taliban in Afghanistan, the domestic authority for utilizing the CIA or military
forces could be found in this 1996 legislation. The Act also amended the 1961 Foreign
Assistance Act, giving the President the authority to without foreign aid/assistance
to any governments that are declared to be engaged in state sponsored terrorism
or aid terrorist organizations. Fifth, the act improved the regulations covering
explosives and chemicals, and law enforcement’s ability to trace the purchasing and
transfer of such weapons (Beckman, 2001). Finally, the Act amended the Foreign
Sovereign Immunity Act to allow private litigants to sue a foreign government for
monetary damages in the U.S. federal court when the government has engaged
in state sponsored terrorism. Thus, the act allows victims of terrorism to sue for
personal injury/tort in federal court “for personal injury or death caused by an act of
torture, extra judicial killing, aircraft sabotage, hostage taking, or the provision of
material support or resources to terrorists.” In essence, the act stripped countries of
sovereign immunity in the U.S. court system if they engage in state sponsored acts
of terrorism.

Legislative Reponses in the United States Since 2001: The PATRIOT ACT and
Homeland Security Legislation

The attack on the United States on September 11 traumatized as it arguably has

not been since Japan’s surprise attack on the United States at Pearl Harbor in 1941.
Within one week of the attacks, then-Attorney General John Ashcroft submitted a
 The United States 27
large anti-terrorism proposal (342 page bill) that would grant the federal government
expansive powers in combating terrorism. President Bush called on Congress to pass
the legislation within several days. At the same time, within several weeks of 9/11,
a poll found that approximately sixty percent of respondents thought it necessary to
sacrifice certain civil liberties to combat terrorism. In this poll, broadening of federal
law enforcement’s power to monitor telephone calls (land-lines and cell phones)
was approved of by fifty-nine percent of the respondents, while fifty-one percent
supported the surveillance of electronic communications, such as e-mail and the
history of Web pages visited (Richardson, 2001). While Congress took a little longer
to pass the legislation (approximately forty five days), most agree that the legislation
was subject to very little debate and scrutiny and some senators and congressmen
admitted to not even reading all of the provisions contained in the proposed
legislation before voting. The lack of rigorous debate and scrutiny is illustrated by
the final vote count in passing the bill. In the House of Representatives, only sixty-
six of the 435 representatives voted no, and only one of the 100 Senators voted
against the legislation. The proposed legislation spanned hundreds of provisions and
amended many federal statutes. The act was signed into law by President Bush on
October 26, 2001. The title of the law stresses its goal to improve the ability of
federal law enforcement to ferret out and thwart terrorist acts, namely “Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism” (hence the acronym, USA Patriot Act).
As the Patriot Act amends a variety of different laws on a great array of different
law enforcement tactics and tools in gathering intelligence during the course of an
investigation. It also amends laws dealing with the cross-flow of communications
as between federal agencies and allows, for example, the cross-flow of information
between the FBI and CIA (the barrier between the cross-flow of information between
FBI and CIA had been put into place in 1978). Broadly speaking, the Act has been
viewed as an expansion of law enforcement powers to the detriment of civil liberties
as the Act generally allows law enforcement to gather private information and/or
monitor individuals in ways not previously permitted, and subject to lesser amounts
of judicial oversight (if any). Perhaps the most notable of the amended laws deals
with the definition of terrorism in the United States Code. Prior to 2001, the U.S. Code
only defined acts of “international terrorism.” However, the Patriot Act amended 18
U.S. Code Section 2331 to include a variety of activities under the notion “domestic
terrorism.” Domestic terrorism now includes and involves the following:

(A) involve acts dangerous to human life that are a violation of the criminal laws of
the United States or of any State;
(B) appear to be intended—
i. to intimidate or coerce a civilian population
ii. to influence the policy of a government by intimidation or coercion
iii. to affect the conduct of a government by mass destruction, assassination, or
kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States
28 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
The law also broadens to previous definition of terrorist organization to include
any group of two or more people (organized or not) who commit a terrorist act with
the intent to cause death or serious injury, or plans such terrorist activities. This
is consistent with previous notions in the United States of the criminal offense of
“conspiracy.” The Patriot Act also amends the Racketeer Influenced and Corrupt
Organization (RICO) statute to provide that conspiracies based on terrorism are
included under RICO, meaning an extra level of investigatory tools are available,
and the RICO offenses and sentences for convictions are also applicable. In terms of
multiple individuals acting together or in concert, the law also created new political
offenses for the harboring and assisting of others who might commit terrorist acts.
Specifically, the law specified that a person was guilty of harboring or concealing
terrorists if they harbor or conceal an individual with a reasonable grounds to believe
that the individual has committed, or is about to commit, a terrorist act. Similarly,
it is a criminal offense to intentionally provide material support to an individual or
organization, if it is known that the resources will be used to prepare for or carry out
a terrorist act.
The law also invests the Department of Justice with the authority to investigate
all offenses relating to terrorism. Prior to this change, several federal departments
had concurrent authority to investigate federal crimes which would meet this new
definition of terrorism delineated above. For example, in many cases, the Department
of the Treasury (Secret Service, Bureau of Alcohol, Tobacco and Firearms, Customs
Department), Department of Defense (Coast Guard), and the Department of
Justice (Federal Bureau of Investigation) might all have an interest in pursuing an
investigation.
A major portion of the Act enlarges the federal government’s power to conduct
criminal investigations. For instance, Section 216 of the Act allows law enforcement
to install devices that can intercept e-mail and internet activity (in terms of Web pages
visited) (pursuant to a judicial warrant), and to convert the information into readable
format. Section 213 allowed law enforcement the authority to conduct “sneak and
peak” warrants, which would be a search which involves a delay delivering notice
of the execution of a search warrant, which is normally done to the occupants of the
searched premises at the time of the search. However, Section 213 grants federal law
enforcement the authority to secretly enter a premise without notifying the occupant
until some “reasonable” time after the search if “providing immediate notice would
have an adverse result” in the investigation. Thus, law enforcement could enter
a premise surreptitiously, and plant surveillance equipment/bugs, and not tell the
occupant of the premises until a later point. This is a major departure from standard
practice and previous laws relating to search warrant executions under the Fourth
Amendment. This provision did cause great concern among citizens polled about the
provision. For instance, in a 2004 USA Today/CNN/Gallup Poll, 71% of individuals
polled disapproved of a provision “that allows federal agents to secretly search a
U.S. citizen’s home without informing that person of the search for an unspecified
period of time.” Additionally, the Act allows for the Attorney General to retrieve
and store DNA samples from any defendant/prisoner convicted of any federal crime
 The United States 29
of violence or terrorism. Section 218 allows the monitoring of phone conversations
without a warrant if the law enforcement agents aver that a “significant purpose” of
the investigation is to gather foreign intelligence. These provisions arguably bring
new meaning to the old cliché’ that “big brother is watching (listening).”
One of the most controversial aspects of the Patriot Act, and certainly a provision
which has galvanized critics and supporters alike, is the provision which allows
federal law enforcement to collect and review records on an individual held by a third
party (e.g., library records, bookstore purchases, medical records from doctor’s visits,
university records, et cetera). The records sought for review—typically business and
library records—are procured by utilization of an administrative subpoena—which
law enforcement can in essence print out from the printer at their desk and sign
it as a federal officer. No judicial oversight is needed—and no judicial approval
or issuance of a grand jury subpoena is needed. These administrative subpoenas
have been delivered via normal mail/correspondence (colloquially called “national
security letters”), where the recipient of the mailing is told that information is sought
pursuant to an investigation, and that it must be provided to law enforcement and
that the disclosure is secret. Indeed, many have construed this provision as originally
not even allowing the recipient of these letters to contact a lawyer and ask for advice
(Foster, 2006). This means that the person receiving the letter may not disclose
its contents beyond responding to the appropriate agent. The recipient, be it an
individual, business, or a bookstore, cannot attempt to quash the subpoena via a
judicial order before turning the information over—as the law mandates turning over
the information before seeking judicial review of improper requests. Additionally, as
mentioned above, no judicial warrant or involvement is needed for law enforcement
to “issue” one of these requests. The agent can print out the orders from his or her
desk. According to the New York Times in November 2005, “the letters have proven
a favorite tool, with tens of thousands issued since the 2001 attacks.” In a report
submitted to select members of the House of Representatives and Senate on April 28,
2006, the administration disclosed that the FBI secretly sent 9,254 national security
letters within the last year alone to financial institutions, telephone and internet
providers, and other companies, requests which involved the request for information
on over 3,500 U.S. citizens and legal residents (Sherman, 2006). This information
was only disclosed because 2006 amendments to the Patriot Act now require that the
frequency of these requests must now be reported on a regular basis to Congress.
Numbers from 2001-2005 are considered “classified” and still not disclosed by the
administration or federal law enforcement. This 2006 report also disclosed that the
FBI received 155 warrants from a secret court to examine business reports under a
provision of the Patriot Act which allows applies to library and bookstore records.
This can be compared with only 35 such warrants being issued between November
2003 and April 2005 (Sherman, 2006). While the administration has promised that
(at least to date) law enforcement has not sought after library records, many libraries,
because of opposition to this law or because of disagreement with how this law has
been implemented, have changed their procedures to purge library records on more
regularly basis—eliminating the long term storage of personal, private information.
30 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Finally, the law amends immigration law to strengthen the hand of federal law
enforcement in deporting certain individuals. Namely, the Act amends immigration
laws to prohibit aliens from soliciting funds or members for a terrorist organization, or
provide material support to terrorist organizations. The act provides that that an alien
can be refused entry into the United States for these activities, and more importantly,
the act allows for the removal of those already legally in the country (i.e., under a
temporary student visa or work visa) for committing these activities. Furthermore,
very powerfully, the act allows the Attorney General to order the apprehension and
physical custody of any alien that the Attorney General has “reasonable grounds
to believe” was engaged in any set of activities deemed dangerous to national
security. Once in custody, the Act (section 412 of the Patriot Act) allows for the
government to detain suspected aliens for up to seven days without a hearing—after
which the person must be released, charged, or deportation proceedings commenced.
Furthermore, if the Attorney General believes an individual’s release would threaten
national security or the peace and security of U.S. citizens or the community, the
Attorney General can request that the detention be extended to six-month renewable
periods of detention. However, this requires that the Attorney General certify the
person as a “suspected terrorist,” and the Act requires that the Attorney General and
the Department of Justice report to Congress the usage of this certification power
every six months.
Further, under agency regulations promulgated by the then-Immigration and
Naturalization Service (INS) on September 17, 2001, a person can be detained without
charge for up to 48 hours (prior to 2001, the regulation only allowed for detentions
of up to 24 hours without charge). However, “in the event of an emergency or other
extraordinary circumstances,” the person could be detained for a “reasonable period
of time” without charge (8 CFR 287). It has thus been charged that the “regulations
permit the INS to detain foreign nationals indefinitely without charge,” and that
this power “has been far more frequently used than the certification power under
Section 412 of the USA Patriot Act” (House of Lords & House of Commons Joint
Committee on Human Rights, 2003-2004).
This immigration change brought about by the Patriot Act has become a
powerful tactic by the Department of Justice, especially in cases where the evidence
may not support a conviction beyond a reasonable doubt in the federal court
system for terrorism related offenses. For instance, rather than having to prove by
high standards of proof the violation of certain laws, the Department of Justice
may institute deportation proceedings against any alien the Attorney General has
“reasonable grounds to believe” was a threat to national security. The level of proof/
evidence is quite low, only such proof/evidence that reasonably supports the view
of the Attorney General’s office. So, in cases with difficult evidentiary issues, the
Department of Justice can simply institute deportation proceedings, and have the
unwanted individuals expelled from the United States. Interestingly, this provision
of the Patriot Act comes full circle back to the first piece of anti-terrorism legislation
ever enacted in the United States, the Alien and Sedition Acts. An important aspect
of these 18th century acts involved the deportation of those unfriendly to democracy.
 The United States 31
Indeed, within several weeks of the law’s passage, several boatloads full of French
immigrants were on their way back to France.
Under lesser discussed provisions of the Patriot Act, financial institutions are
required to document and sometimes report the suspicious business activities of
customers. Thus, for example, if an individual went to an automobile dealer and
wished to pay for the vehicle with cash, the business would have to collect certain
information about the individual and report it to the authorities. Under the Patriot
Act, basic information must be collected if the customer’s activities are deemed
“suspicious,” or the transaction exceeds a certain amount. For instance, for a check-
cashing business in New York City, the business gathers “as much information
as they can when a customer engages in a transaction of $2,000 or more” (Locy,
2004). The law allows permits federal law enforcement to ask financial institutions
to run a suspect’s name through the customer database, if the agent certifies that
they exhausted other means of finding whether a suspect has a particular financial
account. The idea behind this provision is to help identify those individuals rendering
financial support to terrorist organizations, or engaging in money laundering on
behalf of a terrorist or terrorism organization.
The sixteen provisions of the Patriot Act were sunset provisions, meaning
that the provisions would lapse on December 31, 2005, unless the provision was
expressly renewed by Congress. In November 2005, on the verge of expiration,
all sixteen sunset provisions of the Patriot Act were extended temporarily by
Congress until March 10, 2006, in order to resolve differences in opinion as how
best to preserve civil liberties in the process. Again on the verge of expiration,
Congress reauthorized the law on March 7, 2006, thus making it to the President’s
desk for signature prior to the March 10th deadline. The bill extending the Patriot
Act passed the Senate by a vote of 89-10 and the House of Representatives by a
vote of 230-138. Of the sixteen provisions, thirteen of the provisions have been
permanently enacted into law—meaning no further action is required by Congress.
The three most contentious and controversial provisions in Patriot Act were slightly
amended in the hopes of placating critics who claimed the provisions disregarded
individual civil liberties. Of the three contentious provisions, the provision
allowing for “sneak and peak” warrants and the provision allowing for a “roving
wiretap,” allowing law enforcement to obtain a wiretap on every phone a used by
a suspect, were both renewed, but must be reviewed and renewed in four years.
Furthermore, the provision which has been cited extensively as being prone to
law enforcement abuse, namely one dealing with the ability of law enforcement to
collect business and library records with an administrative subpoena, was slightly
amended, and also subject to review again in four years. While the renewal of the
sunset provisions came with promises of greater public reporting and oversight,
critics have criticized the act’s extensions as being just as faulty as the underlying
original legislation. Congressman John Conyers, for example, has called the
extensions “a huge step back for civil liberties.” ACLU Senior Counsel, Lisa
Graves, said that “Congress is poised to repeat the same mistakes it made in 2001”
(Lichtblau, 2005).
32 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Per the revisions by Congress, after the March 10, 2006, deadline, the use of a
subpoena (and National Security Letters) would be subject to judicial scrutiny—at
least minimally. That is, the law was amended to all the recipients of these requests for
information could at least challenge the gag order, normally preventing the recipient
from even mentioning the reception of one of these letters (Foster, 2006). Thus, under
the revised Act, after March 10, 2006, the recipient of a “national security letter”
would have the right to seek a judicial determination in challenging the requirement
that the recipient not disclose the receipt or content of the letter/subpoena. However, it
must be stressed that the judicial scrutiny of law enforcement action remains minimal
under this change. Individuals cannot challenge the actual request for information—
but only the “gag order” part of the letter/subpoena. In commenting on this change,
the executive director of the American Library Association, Emily Sheketoff, stated
that the changes would make “no appreciable improvement for…[an individual’s]
privacy” (Foster, 2006). Second, the revisions eliminate the previous requirement
that the recipient of the national security letter/subpoena provide the FBI the name(s)
of lawyers consulted about these letters. Third, the revisions clarify that libraries
are exempt from secret demand for information if the library provides to its patron
an “electronic communication service.” This prompted Congressman John Conyers
from Michigan to comment that the revisions offer “no meaningful protection for
library records,” as most offer computer internet access (Foster, 2006). Finally, the
revised law creates a National Security Division at the Department of Justice.
Indeed, there does not appear to be any significant momentum to repeal any of
the Patriot Act provisions, in part due to public ignorance as to what the Patriot Act
actually allows. A CNN/USA Today/Gallup poll illustrated this general ignorance
of the public as to the legislation, finding that forty-one percent of the individuals
polled were “not too” or “not at all” familiar with portions of the Act (Gallup Poll
News Service, 2004). Furthermore, forty-six percent of the individuals polled
claimed to be “somewhat” familiar with the provisions. This means, according to
this poll, that almost ninety percent of the individuals polled did not have a complete
and comprehensive understanding of the legislation. Interestingly, however, despite
this general lack of complete understanding regarding the law, this did not stop
approximately twenty-one percent of those responding from saying that the Patriot
Act did not go far enough to providing law enforcement adequate tools to fight
terrorism, while another forty-six percent responded that the law was “about right”
in protecting civil liberties. According the poll, the groups that were “least likely
to say the Act goes too far” include “women…Republicans, conservatives, people
from rural areas, and those with no college education.” In terms of future legislation
beyond the Patriot Act, there seems to be split in the public regarding the need.
Thus, in 2002, a CBS News/New York Times poll found that approximately forty
percent worried that the government will not pass new stronger anti-terrorism laws,
while forty-four percent were concerned that the government would enact new anti-
terrorism laws that would adversely impact civil liberties. Yet, despite the conflicting
public opinion polls, several prominent senators from both sides of the aisle are
said to be in talks regarding new legislation relating to the Patriot Act. Specifically,
 The United States 33
Senator Patrick Leahy (a Democrat from Vermont) and Senator Arlen Specter (a
Republican from Pennsylvania) were planning on co-sponsoring new legislation
which would, among other things, set a four year expiration date for federal law
enforcement’s use of the National Security Letters, and require a higher evidentiary
standard/threshold for wiretaps and electronic surveillance done without a judicial
warrant.
Another federal law which has been a favored tool between 2001 and 2006
has been the use of a twenty-two year old federal law which allows prosecutors
to hold material witnesses indefinitely and without charge. This law, the Material
Witness Statute, is located at 18 United States Code Section 3144. The original
idea behind the law was to allow witnesses with information about another’s
criminal actions to be held sufficient long to allow testimony in the case, especially
in cases where it is believed that the witness would flee or disappear. However,
in recent years in the United States, it has been alleged that “the law has been
used to hold people who the government fears will commit terrorist acts in the
future but whom it lacks probable cause to charge with a crime” (Liptak, 2006).
For instance, Nabil Almarabh, a former cab driver in Boston, was taken in for
questioning and then detained in solitary confinement for approximately eight
months as a material witness under this law. The federal government argued that
Almarabh should not even be able to see a federal judge during this time period
because he had previously been deported, and therefore not in the country legally
(Fainaru, 2002). As one American law professor has written, “if an American were
held in China, Cuba, Iran or any other nation for eight months without access to
a judge, the U.S. State Department would surely protest” (Wu, 2004). In May
2003, the Department of Justice admitted to holding approximately forty to fifty
people without charges as material witnesses “in the course of the September 11
investigations” (Liptak, 2006)—about half for longer than one month. Because of
this recent usage of the law in a way not exactly envisioned by its drafters roughly
a quarter century before, the Office of Inspector General for the Department of
Justice has opened up an investigation of alleged multiple instances of abuse
by prosecutors and “the government has apologized to 13 of the 70 material
witnesses located by the American Civil Liberties Union and the Human Rights
Watch” (Liptak, 2006). As Georgetown University Law Professor David Cole
has stated in response to government misuse of this law, “one of the problems we
saw everywhere after 9/11 was in the absence of any rational, narrowly tailored
preventive detention authority, the administration reached out to exploit a number
of other legal and illegal methods to detain people—immigration, material
witness, enemy combatant. They were creating preventive detention authority
out of statutes that were not meant to serve as that or out of whole cloth” (Liptak,
2006). Use of the material witness statute has not gone without notice of other
countries, and it has been seen from abroad by some as “a form of preventive
detention when authorities lack sufficient evidence that an individual committed
a crime or immigration violation” (House of Lords & House of Commons Joint
Committee on Human Rights, 2003-2004).
34 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
The usage of this material witness law is reportedly hard to challenge by lawyers
and the courts, as the standard for detainment (for courts) would be simply that
prosecutors believe in good faith that a material witness needs to be detained in
order to preserve testimony (a pretty low threshold determination). Additionally, as
it relates to challenges by lawyers, contesting the usage is often difficult given that
many of the cases are subject to court sealing orders and cloaked with the secrecy
of grand jury proceedings. This practically means that lawyers often are prohibited
from talking to the press or others about potential abuses that they witness their
clients suffering under the law. As University of Miami Law Professor Ricardo J.
Bascua commented, “the Justice Department routinely gets sealing orders. These
court orders never expire. For instance, I’m perpetually under court order from the
Eastern District of Virginia, a place I’ve never been to, not to talk about [a witness]”
(Liptak, 2006). However, because of the misuse noted above, new legislation has been
proposed that would place strict time limitations on detentions for witnesses, namely
only up to ten days for grand jury testimony and only up to thirty days for trials.
The proposed legislation would also only allow the detention of material witnesses
if the government can show by clear and convincing evidence that a witness would
flee if not first taken into government custody. Finally, according to Professor Cole,
rather than over-broadly interpreting existing statutes to allow for the preventive
detention of those who are believed to be dangerous, if Congress wants to allow law
enforcement to hold a dangerous individual even when it lacks evidence to convict,
then Congress ought to pass a preventive detention statute which specifies as such.
Cole further believes that such a preventive detention statute will be proposed after
the very next attack in the United States.

Law Enforcement Organization within the United States

Given that the United States is a federalist system, its law enforcement structure
and apparatus has long been cited as one of the leading decentralized models of law
enforcement in the world—with a variety of policing agencies at the city, state, and
federal level. In addition to being decentralized, the policing force in the United States
is also considered to largely uncoordinated as well. Indeed, one of the criticisms of
the United States and its law enforcement on 9/11 by the 9/11 Commission was the
lack of coordination and communication between various federal law enforcement
agencies. The Commission also found that many federal law enforcement agencies
had competing jurisdiction and goals. As a result, the Homeland Security Bill was
passed in 2002, and combined the activities/jurisdictions of multiple federal agencies,
many of which had previously been operating independent of each other on the same
cases. The result of the Homeland Security legislation was a massive reorganization
of federal agencies dealing with law enforcement, and included the reorganizations
of various departments, including the Bureau of Alcohol, Tobacco and Firearms,
Customs, Coast Guard, Commerce, Justice, Treasury, Energy, Agriculture, and
Health and Human Resources, just to name a few of the major agencies/departments
 The United States 35
impacted by this legislation. At the time of initial reorganization, it was estimated
that the new Homeland Security Department would include 169,000 employees
(largely from other agencies) and budget of roughly $40 million (Cannon, 2002). All
told, twenty four separate federal agencies were combined into the Department of
Homeland Security, and put into one of four subdivisions (Border and Transportation
Security; Science and Technology; Emergency Preparedness and Response; and
Information Analysis and Infrastructure Protection. However, while some effort was
made to consolidate and harmonize federal agencies under the Homeland Security
Bill in 2002, the United States remains a leading example of a decentralized policing
force as between the federal and state governments.
Further, in contrast with countries such as Russia, Israel and Spain, the United
States has maintained a fairly restrictive prohibition on the utilization of military
soldiers for domestic police and law enforcement activities since 1878. Following
the Civil War in 1865, the federal government located large amounts of federal troops
throughout the southern United States, in an effort to maintain order and peace and
ensure any remaining rebellious notions in the south were stifled. The federal troops
were utilized extensively for traditional policing activities in the south during this
era, and played an especially important role in guarding and protecting the polling
places from violence. The troops played a very important role in protecting the vote
of the newly enfranchised black voters (former slaves) in the south, and taking law
enforcement and policing action against rebellious groups such as the Ku Klux Klan.
It could be cogently argued that between 1861 (beginning of the Civil War) and 1878,
federal troops were utilized extensively in securing and protecting the homeland.
However, in the mid-1870s, as the impetus behind the reconstruction of southern
states began to wan, southern politic leaders began to chafe under the pressure of
federal troops and influence and pushed for their own autonomy once again. With
the election of Rutherford B. Hayes as President of the United States in 1875, and
the promise to end reconstruction in the south by withdrawing federal troops, these
southern leaders got their wish. To ensure that federal troops would no longer play
a policing role, many of these leaders (either themselves in Congress, or through
their Congressional representatives) ensured the passage of federal statute generally
prohibiting the use of military forces in domestic policing. The federal statute, the
Posse Comitatus Act (18 U.S.C. Section 1385), prohibited the use of federal law
enforcement to engage in domestic policing actions within the United States, except
as authorized by the Constitution or a subsequent act by Congress. According to
military lawyer Craig Trebilcock, the term “posse comitatus” literally refers to “the
power of the county” and connotes “the inherent power of the old West county sheriff
to call upon a posse of able-bodied men to supplement law enforcement assets and
thereby maintain the peace” (Trebilcock, 2000). The Act specifically mandated that
“whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force
as a posse comitatus or otherwise to execute the laws shall be fined under this title or
imprisoned not more than two years, or both.” It should be noted that the passage of
this law, and the removal of federal troops, allowed southern authorities to reinitiate
36 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
a rigid racial caste system in the south (which would remain the case until well into
the twentieth century) and ushered in an era considered to be the “nadir of race
relations” in the history of the United States.
The Posse Comitatus Act remains federal law today and has obvious implications
in regards to anti-terrorism and policing actions in defense of the homeland. The
intent behind this law remains that federal troops be prohibited from becoming a
guardia civil, or national policing force, as is the case (and will be discussed in
Chapter Four) in regards to Spain. The revulsion today with utilizing military troops
in domestic law enforcement can be explained on two chief grounds. First, it would
be based upon a concern that the use of military for domestic activities would
overburden the military—when it should be utilized and trained only for the fighting
of wars. This was poignantly illustrated during the 1996 Olympic Games in Atlanta,
where thousands of troops were deployed, some of whom doing tasks of a very
mundane nature (e.g., driving buses or keeping up playing fields) (Defense Weekly,
1996). Second, it would be based upon the notion that the presence of military troops
on American streets would viscerally cause many to (rightly or wrongly) conclude
that America is moving towards a “police state” and away from the “land of the
free.” Indeed, under the 2002 Homeland Security legislation (Title 6, Chapter 1,
Subchapter VIII, Part H, Section 466), Congress stated that the “Posse Comitatus
Act has served the Nation well in limiting the use of the Armed Forces to enforce the
law” and that “Congress reaffirms the continued importance of section 1385 of title
18, and it is the sense of Congress that nothing in this chapter should be construed
to alter the applicability of such section to any use of the Armed Forces as a posse
comitatus to execute the laws.” So, it is clearly the intention of Congress that this
law continue to act as prohibition as to the use of federal military troops in domestic
policing actions. Also, while the original act dealt only with the use of the Army, it
has been extended to include the prohibition of usage of the Air Force, Navy, Marine
Corps, and units of National Guard under federal authority.
However, as Congress also stated in the 2002 legislation, by the very terms
of the act, federal military troops can be utilized in domestic policing activities if
authorized by the Constitution or a subsequent act of Congress and thus does not
act as a complete barrier. Congress has passed a number of exceptions to Posse
Comitatus over the years to include such usage of troops as follows: use of troops
by President in declared emergency; use of National Guard units under authority
and order of a state governor; use of military (e.g., Navy) in drug interdiction
cases off the coasts of the United States; et cetera. Congress has also recognized
that exceptions to Posse Comitatus are proper when allowed by the Constitution,
and therefore in cases where “the President determines that the use of the Armed
Forces is required to fulfill the President’s obligations under the Constitution to
respond promptly in time of war, insurrection, or other serious emergency.” Yet,
some scholars have wondered, despite the insistence of Congress, whether the Posse
Comitatus Act even applies in the amorphous “war” on terrorism. For instance,
University of Pennsylvania Law Professor Kim Lane Scheppele has written that
“the Posse Comitatus Act has essentially disappeared since 9/11…and under this
 The United States 37
Administration, a dead letter” (Scheppele, 2006). Like many other areas involving
the plenary powers of the President during time of “war,” Scheppele postulates that
the Administration would view the law as an “unconstitutional restriction on the
plenary powers of the Commander in Chief in wartime” (perhaps quite similar to the
Presidential view of the War Powers Resolution of 1973). Scheppele has reasonably
based this conclusion upon a footnote in a White House Legal Counsel Memo by
John Yoo, which stated as follows:

We recently opined that the Posse Comitatus Act, 18 U.S.C. s. 1385 (1994), which
generally prohibits the use of the Armed Forces for law enforcement purposes absent
constitutional or statutory authority to do so, does not forbid the use of military force for
the military purpose of preventing and deterring terrorism within the United States. See
Memorandum for Alberto R. Gonzales, Counsel to the President and William J. Haynes II,
General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney
General and Robert J. Delahunty, Special Counsel, Office of Legal Counsel, Re: Authority
for the Use of Military Force to Combat Terrorist Activities within the United States at
15-20 (Oct. 23, 2001) (Scheppele, 2006).

Indeed, even before 9/11, a military attorney and author argued that the Posse
Comitatus Act would not prevent the President for utilizing troops domestically
if he truly desired to deploy troops domestically for counter-terrorism purposes.
Major Craig Trebilcock wrote in October 2000 as follows: “The Oklahoma City
bombing and the unsuccessful attempt to topple the World Trade Center have
our domestic security planners looking inward for threats against the soil of the
United States from small but technologically advanced threats of highly motivated
terrorists. What legal bar does the Posse Comitatus Act present today to using the
military to prevent or respond to a biological or chemical attack on the soil of the
United States? In view of the erosion of the Posse Comitatus Act in the past 20
years, the answer is ‘not much’” (Trebilcock, 2000). Thus, while the federal law
has been the law of the land for over one hundred and twenty eight years, and was
reaffirmed by Congress in 2002 as serving the nation well, it arguably does not
apply (at least according to the Bush administration) during its far reaching “war
on terrorism.”
While this issue will again be addressed in Chapter Nine, many issues and
problems are raised by a decentralized policing structure. Some of those problems
are as follows: corruption of local authorities (as seen after the end of reconstruction
in the United States); local law enforcement are considered largely independent of
effective formal checks on power/operations; federal investigation (Department
of Justice) only occurs in the most egregious of cases, usually involving flagrant
violations of “civil rights;” arguably less training/education for local officers on
the beat and closest to the crime scene; less cross-flow of information; and the
expensive, inefficient and/or superfluous way of administering law enforcement;
among other criticisms/factors. Further, in the United States, the restriction on the
use of military for domestic law enforcement under the Posse Comitatus Act stems
largely from southern revulsion with federal troops enforcing black voting rights at
38 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
the end of Reconstruction, and not based upon considerations of what system of law
enforcement would be most effective in protecting the homeland.
What benefits (if any) stem from the maintenance of multiple decentralized police
forces on the state and federal levels? First, at least as it relates to the United States,
constitutional notions of federalism are a factor, as the general policing power was
left to state governments under the Tenth Amendment to the Constitution. Second, it
has been argued that in a country as large as the United States, multiple local police
forces make sense—and allow for policing in areas that otherwise would not be
given proper attention or resources by the federal government. Additionally, author
Phillip Rechel has argued that a chief benefit of a decentralized police force today is
serving as a check and balance against corruption. That is, maintaining competing
law enforcement agencies allow each to serve as a check on the other, and that,
according to Reichel, the “public feels more secure knowing two separate forces
keeping each other in line and working to guarantee civil liberties” (Reichel, 1999).
In terms of law enforcement, several words on the use of surveillance and
technology are also in order. The U.S. has begun to emulate the system of closed
circuit television surveillance utilized so heavily across the Atlantic in Great Britain.
While the use of CCTV has garnered some criticisms, federal case law to date has
supported the usage of systems which capture one’s images while out in public.
Phrased another way, one does not enjoy a right to privacy when interacting out in
public. Thus, a significant amount of public locations in the United States are subject
to electronic surveillance at the present time—especially federally owned locations
such as monuments, government buildings and parks. Many cities and states have
also begun to emulate the British CCTV approach. Most notably, in April 2006, New
York City announced that it began to deploy the first of up to five hundred additional
surveillance cameras around the city at an estimated cost of nine million dollars.
It has been reported that New York City already has in place a thousand cameras,
with another one thousand to be in place by 2008. These cameras do not include
the roughly three thousand cameras that are in place around public housing areas. It
has been additionally reported that “hundreds of additional cameras could follow if
the city receives $81.5 million in federal grants it has requested to safeguard Lower
Manhattan and parts of midtown with a surveillance ‘ring of steel’ modeled after
security measures in London’s financial district” (Hays, 2006). New York is certainly
not unique in emulating London, as Chicago has reportedly spent five million on two
thousand cameras throughout the city, while other cities like Washington, DC, and
Philadelphia have done the same (Monaghan, 2006).
Further, in 2006, the Bush administration has admitted to warrant less domestic
spying when one of the parties to a phone conversation is known or believed to be
an al-Qaeda affiliate or operative. In a USA Today article in May 2006, it has also
been alleged that the National Security Agency (NSA) is keeping records on every
domestic to domestic call within the United States. That is, NSA has compiled a list
of every phone number and a list of the outgoing and incoming calls to each phone
number. Furthermore, a new facet of electronic surveillance is in the collection of
data on citizens via e-mail and internet activity through “data mining” programs.
 The United States 39
This information can be purchased by the government from private sector data banks
who have developed software (e.g., tracking “cookies”) to identify the web pages
visited by individuals, products purchased, on-line articles read, et cetera. Daniel
Solove, a professor of law at George Washington University, has argued in his book
(The Digital Person: Technology and Privacy in the Information Age, 2004), that
Americans have become largely apathetic and indifferent to the loss of their privacy
and this type of “surveillance creep,” which allows in essence a “digital dossier”
to be created on individuals (Monaghan, 2006). These “digital dossiers,” created
by private companies, can again be purchased by federal or state law enforcement.
Thus, according to the American Civil Liberties Union in a 2003 report, the effect
is that it “will soon be possible to combine information from different sources to
re-create an individual’s activities with such detail that it becomes no different from
being followed around all day by a detective with a video camera” (Monaghan,
2006).

The Use of Military Abroad as Way to Protect the Homeland

As already discussed, the Posse Comitatus Act has served at least as a partial barrier
since 1878 in utilizing military troops at home for policing activities. However,
President Bush has spoken often since September 2001 that it was the strategy
of the United States to combat and fight terrorism abroad, as opposed to at home
and on United States soil. As such, the United States eradicated the radical Taliban
regime in Afghanistan, disrupted al-Qaeda operations in Afghanistan, and forced
its remaining leadership to presumably flee to hiding in the mountainous regions
of Afghanistan. The United States also invaded Iraq, under claims of preemptive
self-defense and Article 51 of the United Nations. The Bush Doctrine extended the
traditional notion of Article 51 self-defense very broadly to “preempt” any perceived
threat involving weapons of mass destruction. Bush announced this “strategic
doctrine of preemption” at the United States Military Academy at West Point, New
York, in 2002 (Falk, 2002). Under this doctrine, as subsequently explained by Bush,
the United States would “intervene against oppressive regimes that produce, hide,
and prepare to use weapons of mass destruction,” and “against such enemies, we
cannot sit quietly and hope for the best. To ignore this mounting danger is to invite it.
America must act against these terrible threats before their fully formed” (Houston
Chronicle, 2002). This mentality was used to justify war with Iraq. As many in the
United States government now acknowledge, the Saddam Hussein regime did not
have weapons of mass destruction. This usage of “preemptive” or anticipatory self-
defense also often sets the United States at odds with other countries. Immediately
after 9/11, President Bush made clear to leaders of other nations not to thwart U.S.
actions abroad, stating in televised address to Congress, that “either you are with us,
or you are with the terrorists” (Roth, 2001).
However, despite the major risks of incorrect intelligence that leads to faulty
action (as illustrated by the Iraq war) and the diplomatic difficulties with other
40 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
countries, several law enforcement “benefits” flow from this policy of preemptively
striking and treating terrorism as a “war,” as opposed to a criminal law violation.
First, the force and power of the military can be brought to bear on apprehending
terrorists and eradicating the terrorist threat—especially when the use of this
powerful resource could not be extensively utilized within the United States—at
least not without great controversy. This approach can be contrasted with many other
western democracies (like Germany, as will be discussed in Chapter Three), where
terrorists are viewed as another (albeit more serious) variety of defendants to be
handled under domestic law enforcement and pursuant to domestic criminal laws
and protections. Interestingly, this was the approach of the United States as well prior
to 9/11. In September 1998, FBI Director Louis Freeh, speaking before the Senate
Judiciary Committee, commented that “…based on its policy of treating terrorists as
criminals and applying the rule of law against them, the United States is one of the
most visible and effective forces in identifying, locating, and apprehending terrorists
on American soil and overseas.” Second, the use of the military in engagements in
Afghanistan and Iraq has enabled the United States to capture and interrogate many
suspected terrorists abroad, and indefinitely detain those deemed dangerous by the
President without having to prove the allegations of being a terrorist at trial (i.e., the
domestic criminal justice system—with its attendant constitutional and procedural
protections—can be bypassed by the Administration). As of November 2005, it was
reported that the United States had captured and detained (as least temporarily)
more than 80,000 foreign individuals in the war on terror—“enough to nearly fill
the NFL’s largest stadium” (Sharder, 2005). Since 2001, the United States has set up
a variety of detention centers around the globe—including some that have gained a
certain notoriety, including the CIA “salt mines” detention facility in Afghanistan,
the Abu Ghraib Prison in Iraq, Guantanamo Bay in Cuba. Even Europe has been
involved in the detention and questioning of suspect, through a very controversial
practice of “unique rendition” or “extraordinary rendition,” as will be discussed
more completely below.
The practice of rendition involves the transfer of individuals from one country
to another, for purposes of trial or interrogations. The original practice of rendition
dates prior to 9/11 and involves efforts to transfer known terrorists to locations in
order to stand trial. Indeed, the CIA created a Rendition Branch in 1997, and in July
2000, then CIA Director George Tenet commented in congressional hearings that
“since July 1998, working with foreign governments worldwide, we have helped
to render more than two dozen terrorists to justice…these renditions have shattered
terrorist cells and networks, thwarted terrorist plans, and in some cases even
prevented attacks from occurring.” However, after 9/11, rather than seeking trial
for international terrorists, “the focus of rendition practice has shifted emphatically;
the aim now is to ensure that suspects are not brought to stand trial, but are handed
over to foreign governments for interrogation—a process known in the USA as
‘extraordinary rendition’—or are kept in U.S. custody on foreign sites” (Amnesty
International, 2006). Because of the incredibly secrecy involving this practice, it
is unclear the exact number of individuals being held abroad by the United States.
 The United States 41
However, given that Egypt’s Prime Minister stated that some 60-70 detainees were
sent to Egypt, and the “Pakistani government has publicly stated that some 700
terrorist suspects have been arrested, many of whom have been handed over to U.S.
custody,” the number of individuals subject to rendition are thought to be in excess
of 500 individuals.
Of the over 83,000 individuals who have been detained, as of November 2005,
roughly 14,500 individuals remained in custody, mostly in Iraq. Of the individuals
detained in Iraq, 5,569 were detained for at six months without release, while 3,801
individuals were held for over a year, and 229 were held for more than two years.
These numbers, from the Department of Defense, do not include the number of CIA
detainees, or those secretly turned over to other countries for question under the
“rendition” practice. These numbers also do not include detainees outside of Iraq,
such as the detentions in Afghanistan (thought to number approximately 500-1000)
and Guantanamo Bay. At its peak in May 2003, the prison at Guantanamo Bay held
roughly 680 detainees (from roughly 44 different countries/nationalities), although
the number has decreased to a little fewer than 500 individuals as of November
2005. As of June 24, 2006, the United States has admitted that 450 individuals are
still being held at Guantanamo (The Washington Post, 2006). The United States
admits to the release of 232 individuals from Guantanamo Bay since 2001, although
65 of those 232 released were released based upon the agreement that the individuals
would be held by their home governments (AP Press, 2005). However, many of
the 65 individuals have been released by their respective home governments. For
example, the six British citizens once held at Guantanamo Bay were released
relatively soon after their return to Great Britain, as British authorities did not believe
that they sufficient evidence to warrant the continued detention of those individuals.
Finally, over a hundred individuals have been reported as dying in U.S. custody,
with approximately 26 deaths being investigated as homicide. According to Senator
Warner, more than 400 criminal investigations have been conducted, 95 military
personnel have been charged with misconduct and/or criminal offenses, and 75 of
these individuals have been convicted of misconduct charges. In June 2006, three
detainees were able to commit suicide in their cells at Guantanamo Bay.
For those unfortunately selected by the CIA as suspected terrorists and sent to
an undisclosed location via the practice of “unique rendition” or those captured in
Afghanistan and sent to Guantanamo Bay, the detention involved being “hooded,
shackled, and drugged while transported from their area of capture to their prison”
(Reichel, 2005). For those at Guantanamo Bay, the detainees were not originally
provided access to lawyers, relatives, or even judicial review of the conditions of
their confinement. Further, the detainees are limited to two fifteen minute periods
per week for exercise, which consists of walking around a 30 foot area. Furthermore,
these individuals are in a permanent state of limbo, as they are not being treated
as enemy prisoners of war (which would under the various Geneva Conventions
prevent interrogations and mandate certain minimum levels of treatment) or as
criminal suspects/defendants (which would mandate due process considerations—
such as access to a lawyer and a day in court to prove or disprove the allegations).
42 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
A very short time after 9/11, President Bush issued Military Order Number One
(Military Order of September 13, 2001, Detention, Treatment, and Trial of Certain
Non-Citizens in the War against Terrorism, 66 Fed. Reg. 57,833), dated November
16, 2001, dealing with the detention and trial of non-citizen suspects of “acts of
international terrorism,” which specified that individuals tried for international
terrorism could be tried by military courts, rather than civilian courts. Rather, fighting
the war on terror has also enabled to treat suspects as an “enemy combatant” (subject
to indefinite military detention and little to no due process rights). At a minimum,
this practice results in potential defendants having much fewer protections than that
of the average criminal defendant in any advanced legal system. As Georgetown
Law Professor Neal Katyal (who was involved in successfully challenging the
constitutionality of the President’s actions in the 2006 Hamdan case) has argued,
suspects are being tried “for crimes defined by the President alone, under procedures
lacking basic protections, before ‘judges’ who are his chosen subordinates” (Lane,
2006).
After increased political pressure abroad and at home, as well as mounting
criticisms, the Bush administration announced that it would start military tribunals
against six prisoners. Shortly after the tribunals for these six individuals began,
lawyers challenged the constitutionality of the detentions without judicial review by
an independent judiciary. These initial tribunals led to a constitutional struggle in the
U.S. Court system over the carte blanche authority of the President to treat enemy
combatants as he wished, especially when they were not being held on U.S. soil, but
rather a military base abroad leased from a foreign government (namely, the military
base at Guantanamo Bay, Cuba). Indeed, the administration chose the detention
center at Guantanamo Bay so it could insulate itself from claims that the detainees
were being held on U.S. soil (Panelist Comments, 2006). Thus, it was contested that
those detained at Guantanamo should not be arbitrarily denied the lack of judicial
review in filings in the U.S. federal court system. These cases in the federal court
system all eventually percolated up to the U.S. Supreme Court, who handed down a
consolidated decision entitled Rasul v. Bush on June 28, 2004, which held that even
“enemy combatants” held outside of U.S. soil by the United States are entitled to
some minimum due process considerations. Specifically, in a 6-3 decision, the Court
held that detainees have the basic right to challenge their detention in some judicial
forum—which includes the right to be informed of the charges and present evidence
on their own behalf—and that the judicial power of the United States did extend
to Guantanamo Bay. Further, the opinion, authored by Justice John Paul Stevens,
stated that the practice of Habeas Corpus was a practice extending back hundreds
of years in common law, and one that cannot be arbitrarily terminated, even when it
applied outside of the boundaries of the United States. As a result of this Supreme
Court case, the military has had to conduct hundreds of military tribunals since
June 2004, allowing the detainees the opportunity to at least minimally contest that
they were properly designated as “enemy combatants.” As of April 2005, it was
reported that the military had conducted approximately 558 tribunals, spanning
several thousand pages of transcripts for the proceedings (AP Press, 2005). Indeed,
 The United States 43
The Associated Press engaged in litigation with the United States, seeking the full
release of all tribunal transcripts in order for Americans and others to independently
assess the claims of the United States that these individuals held are truly “enemy
combatants.” While several pages of redacted transcripts were provided to the
Associated Press in April 2005, the names of individuals have been stricken from
the transcripts, as well as certain other information blacked out or altered. At time of
publication, a U.S. federal court was still deciding whether the government has the
responsibility to release all non-classified information pertaining to the detentions
under the Freedom of Information Act (which is a domestic “transparency” law
which allows organizations and citizens to request that the government release non-
privileged documents in the government’s possession). According to the Department
of Defense, as a result of the tribunals, 38 of the held detainees were declared to be
“non-enemy combatants” (AP Press, 2005).
While the Rasul v. Bush decision was a strong rebuke of President Bush’s attempt
to keep the detainee “enemy combatants” outside of the reach of the judiciary, it
met with resistance by the Bush administration and its administration supporters in
Congress. Thus, in December 2005, Congress passed The Detainee Treatment Act
(DTA), reaffirming many basic norms such as a prohibition on torturing detainees.
However, in an amendment to the DTA (named the Graham-Levin Amendment,
after its sponsors, Senator Lindsey Graham and Carl Levin), the Congress stripped
the power of the courts to exercise judicial review over the detainees at Guantanamo
Bay or to entertain habeas corpus petitions from these detainees. The amendment
also named a single appellate court to conduct very limited review of the decisions
of the military tribunals referenced above. The law also boldly attempts to strip
the federal courts of jurisdiction of those cases which were “pending on or after”
the date the DTA was enacted. Then, on January 12, 2006, the Bush administration
requested that the Supreme Court dismiss an important case pending at the U.S.
Supreme Court, namely the Hamdan v. Rumsfeld case, in light of the DTA and its
jurisdiction stripping provision. Salim Ahmed Hamdan, a Yemeni laborer, was one
of the first six tried by a military tribunal, and was accused of being a driver at one of
Osama Bin Laden’s properties (Brasch, 2005). Hamdan contested the carte blanche
authority to designate individuals as “enemy combatants” as being in violation
of both international and U.S. domestic laws in U.S. District Court back in 2001.
Hamdan specifically petitioned the Supreme Court for a decision holding that the
process of trials by military tribunals/commissions to be declared unconstitutional.
Indeed, after the Graham-Levin amendment was enacted, the Bush administration
even argued that the Supreme Court should dismiss the case outright, as the
administration believed the Supreme Court lacked the jurisdiction now to hear the
case. In so arguing, the administration cited to a Supreme Court decision from 1867,
namely Ex Parte McCardle, where the Supreme Court allowed Congress to remove
its jurisdiction over a case that it had already decided to hear. In fact, in the Ex
Parte McCardle case, the Supreme Court had already heard four days of testimony
when the jurisdiction stripping bill was passed by Congress (Greenhouse, 2006).
In the Hamdan case, the Supreme Court took the administration position under
44 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
advisement, and it listed the administration’s jurisdictional objections to the list of
issues which were argued to the Court on March 28, 2006 (New York Times, 2006).
The administration also predictably argued that courts should not second guess the
decisions of the executive during time of “war” against terrorism.
On June 29, 2006, the Supreme Court issued its ruling in the Hamdan case,
ruling against the Bush administration by a 5-3 vote, and holding that the Bush
administration’s stated goal of trying detainees by military tribunals/commissions
was unconstitutional and inconsistent with U.S. obligations under both domestic
and international laws relating to due process and minimum levels of treatment.
Specifically, in a majority decision authored by Justice John Paul Stevens, the Court
held that these military tribunals for Guantanamo detainees were not previously
allowed for by federal law, are not required by necessity, and violate Common
Article 3 of the Geneva Convention. According to the Court, Common Article 3
provides minimum procedural protections, even for detainees in the war on terror
and against al-Qaeda. Thus, again according to the Court, even enemy combatant/
terrorist suspects captured by during military operations must be afforded trials
with a “regularly constituted court affording all the judicial guarantees which
are recognized as indispensable by civilized peoples.” This means that the Bush
administration must trial the detainees by the same procedures and safeguards
that govern military courts-martial (which are applicable to U.S. service members
accused of crime) or go to Congress and request Congressional authorization for
the proper authorization/establishment of a judicial apparatus/court charged with the
adjudication of these cases. Finally, in what many have characterized as a rebuke of
the Bush Administration, Justice Stephens wrote that “in undertaking to try Hamdan
and subject him to criminal punishment, the Executive is bound to comply with the
Rule of Law that prevails in this jurisdiction.” As two reporters indicated in a front
page article in one of the nation’s leading papers on the day after the ruling, “for many
in Washington, the decision echoed not simply as a matter of law but as a rebuke
of a governing philosophy of a leader who at repeated turns has operated on the
principle that is better to act than to ask permission” (Baker & Abramowitz, 2006).
In an editorial by editors of The Washington Post, the editors wrote that the ruling
“invalidated a major part of the administration’s ad hoc system, its special trials for
terrorist suspects, and rejected its exclusion of many detainees from international
protections against inhumane treatment” (“A Victory for Law,” 2006).
However, this struggle in the United States regarding how to treat detainees on
the war on terror does not only apply to those foreign enemy combatants at issue in
the Hamdan case. There have also been several American citizens held as enemy
combatants—including Jose Padilla and Yaser Esam Hamdi—a practice which has
raised legal challenges as to whether a U.S. citizen can be held indefinitely by the
military, incommunicado, without being charged with a crime, without being able
to challenge the evidence, and without the ability to speak with a lawyer (or even
relatives and friends for that matter). The Bush administration has defended this
practice citing a 1942 Supreme Court decision (Ex Parte Quirin, 317 U.S. 1), and
arguing that the President’s authority to designate someone as an “enemy combatant”
 The United States 45
is part of the President’s war powers as Commander-in-Chief under Article II of the
Constitution, and a decision/designation that the judiciary has no right to second
guess. In Ex Parte Quirin, the Supreme Court dealt with eight Nazis who were
transported by German submarines to beaches on Long Island, New York, and
Florida, and ordered by the German government to sabotage the American wartime
industries. All eight of the individuals were employed by the German Army, but not
holding a rank in the Army. Furthermore, one of the eight individuals claimed to
be a United States citizen. All eight of the individuals were arrest and put on trial
by a military commission, and subsequently executed. However, before execution,
several appealed their convictions to the U.S. Supreme Court, in essence arguing
that they should have been tried by a civilian court with a jury. The Supreme Court
rejected this argument at the time, holding that the individuals were appropriately
tried by a military commission. On the other hand, as U.S. citizens, many have
forcefully criticized the President’s utilization of the “enemy combatant” label
for U.S. citizens, as citizens have the constitutional right to contest the terms and
conditions of confinement (through the old common law writ of habeas corpus—
which the U.S. Constitution specifies shall not be suspended unless during time of
war and Congress approves the suspension).
Of course, these practices have brought criticisms from a variety of sources—
from Congress to NGO’s such as Amnesty International. Many individuals point to
the lack of charges being brought by virtue of being declared a terrorist or enemy non-
combatant. As Winston Churchill commented in 1943, “The power of the executive
to case a man into prison without formulating any charge known to the law, and
particularly to deny him the judgment of his peers, is in the highest degree odious and
is the foundation of all totalitarian governments whether Nazi or Communist.” Many
have further argued that if there is no day in court or judicial scrutiny of the terms of
incarceration, any individual can be declared an enemy combatant and carted off to a
detention center—certainly foreign individuals declared to be “enemy combatants”
by the President, and even U.S. citizens, as has been famously illustrated by the cases
of Yaser Esam Hamdi and Jose Padilla. The use of “enemy combatant” status for U.S.
citizens has caused one federal judge (Judge Diana Gribbon Motz, United States
Court of Appeals for the Fourth Circuit) to state the societal concern as follows: “I fear
that…[the practice has] opened the door to the indefinite detention, without access
to a lawyer or the courts, of any American citizen, even one captured on American
soil, who the Executive designates an ‘enemy combatant,’ as long as the Executive
asserts that the area in which the citizen was detained was an ‘active combat zone,’
and the detainee, deprived of access to courts and counsel, cannot dispute this fact.”
Thus, certainly one major criticism of the use of “enemy combatant” status in this
fashion is that the one must trust that the government got it right, and that there is no
possibility of checking a government which abuses this process. A second problem
deals with the use of this procedure by prosecutors to threaten suspects into agreeing
with charges, or cooperating with the government, when they otherwise would not
have done so. An illustration of this point can bee seen by looking at the trial of the
alleged al-Qaeda “sleeper cell” in upstate New York (Lackawanna, New York). In
46 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
September 2002, six men of Middle Eastern descent were arrested by the FBI, and
charged with aiding a terrorist organization. In July 2003, all pled guilty to terrorism
related charges and accepted prison terms ranging between six and nine years. In
discussing the case, one of the defense attorneys for the defendants indicated that
the prosecutors threatened to have the individuals named “enemy combatants” and
transferred into military prison indefinitely (and without a trial or access to lawyers
or the courts). If the defense attorney is to be believed, the defendants opted to
plead guilty for offenses—rather than facing the risk of going to jail for an indefinite
period of time and without the possibility of trial (Powell, 2003).
Also, a very short time after 9/11, President Bush issued an Executive Order
dealing with the detention and trial of terrorism suspects, which specified that
individuals tried for terrorism could be tried by military courts, rather than civilian
courts. These actions have, to say the least, blurred the lines between actions of war
and domestic crime. Also, by framing the response as one involving war (as opposed
to criminal justice), the President has (intentionally or unintentionally) effectively
removed judicial oversight and review. As one Law and Economics Working Paper
indicates in its title, “what a difference sixty years makes” (Goldsmith & Sunstein,
2005), referencing the pinnacle of utilizing international law mechanism for trying
Nazi defendants for war crime violations in 1945, and the complete abdication of such
an approach by the turn of the twenty-first century by the Bush administration.
The Bush administration has cited abridgements to civil liberties in the past
during time of war as support for the present course of action. For instance, the Bush
administration is quick to point out that during the American Civil War, President
Abraham Lincoln suspended the writ of habeas corpus, and over 15,000 people were
arrested without the benefit of habeas corpus review by the courts. The administration
also points to reductions of civil liberties during World War I and World War II. For
instance, President Franklin Roosevelt ordered the internment of roughly 110,000
individuals of Japanese-American descent. The point of the administration in citing
these examples is that federal government almost always selects the collective
security over the promotion of individual liberties. However, all of these historical
examples might illustrate another point, namely that “the presence of so many
historical precedents makes the Patriot Act neither more right nor more wrong.
Instead it suggests that the bedrock on which our nation rests—the Bill of Rights—is
less stable than we might like to imagine” (Kelman, 2003). A second response to
the Bush administration’s claim that civil liberties must be eroded during time of
war flies in the face of early promises in regards to the Patriot Act, that it would not
sacrifice any civil liberties. For example, in a statement before the Senate Judiciary
Committee, then-Attorney General John Ashcroft, commented as follows:

I want to assure the Committee that…we have carefully crafted our post-September 11
policies to foster prevention while protecting the privacy and civil liberties of Americans.
As I have often said, we at the Department [of Justice] must think outside of the box, but
inside the Constitution. I take seriously the concerns of civil libertarians, for I, too, believe
that protecting American does not require the sacrifice of those very freedoms that make
us Americans.
 The United States 47
Third, one can distinguish previously incidents of the erosion of civil liberties
during time of war, with the present “war on terror,” in that the previous incidents all
involved actual wars with other nations. The amorphous “war on terrorism” is less
like World War One or World War Two, and is more like Lyndon Johnson’s famous
“war on poverty,” or Ronald Reagan’s “war on drugs.” However, no-one seriously
contended that the “war on poverty” or the “war on drugs” was a real war which
mandated the use of the military and the reduction of individual liberties. Fourth,
unlike a war against another nation, the “war on terrorism” can never really be won,
given that as long as there are dissatisfied individuals among mankind, the plague of
terrorism will continue. Does this mean that the United States will therefore stay in
a permanent state of war (with a corresponding permanent reduction in civil liberties
such as the right of privacy)? These are all open questions today.

Several Notable High Profile Terrorism Cases Since 2001 in the United States
and Results

In light of the United States’ visibility on the global war on terror, it somewhat
surprising to many to learn that the United States has prosecuted fewer high profile
terrorism cases than countries like the U.K. and Spain. Indeed, the USA Today reported
on November 6, 2006, that “federal prosecutors rejected 87% of the international
terrorism cases” in the first nine months of 2006, and that prosecutions have fallen
“from 118 defendants in fiscal year 2002, to 19 defendants from October 1, 2005 to
June 30”. Of course, this excludes those held as enemy combatants and given minimal
military tribunal review, and rather deals only with major prosecutions in the federal
court system. Of all the various cases, perhaps the most notorious and well known
cases in the United States since 9/11 are the cases of Zaccarias Moussaoui, Jose
Padilla and Yaser Esam Hamdi, John Walker Lindh, among others. A few comments
about each case are provide here in order to give the reader a sense for how these
high profile cases have been handled; however, space limitations preclude going into
great depth on these cases or others.
The first case worthy of mention is that involving Jose Padilla. Jose Padilla was
arrested in May 2002 at O’Hara International Airport in Chicago. It was alleged that
he was conspiring with three other men of Middle Eastern descent to procure and
detonate a “dirty bomb” within the United States. While he was awaiting a preliminary
hearing, approximately one month after his arrest, in June 2002, President Bush
declared Padilla to be an “enemy combatant.” He was then immediately transferred
to a military detention facility, where he was only allowed to communicate with his
guards and those who interrogated him. After approximately three and a half years
of being in military custody without a hearing, he was transferred to civilian court to
stand trial for terrorism related offenses when a federal grand jury indicted him and
the federal government dropped the title of “enemy combatant” in November 2005.
His case is tentatively scheduled for trial in September 2006 and may take up to a
half year or year to complete. At that point, if the jury finds that the government does
48 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
not prove its case beyond a reasonable doubt, Padilla will have spent four years in
confinement leading up to the acquittal.
Another case involving a U.S. citizen held for a very long time in detention
without trial or charge is that involving Yaser Esam Hamdi. Hamdi was captured in
Afghanistan in November 2001 with an AK-47 still in his hands. He was captured
when his Taliban unit surrendered in November 2001. He was transferred to
Guantanamo Bay with hundreds of other detainees, when it was discovered he was
an American citizen (having been born in Louisiana and spending the first three
years of his life in Louisiana). He was then transferred to a Navy brig in Norfolk,
Virginia, where he still remained for the next three years after his capture. Hamdi’s
case raises questions as to how long the U.S. government can detain a U.S. citizen
as an “enemy combatant” without trial and without access to lawyers or a day in
court to disprove the allegations. Finally, in September 2004, Hamdi was released
by the federal government after extensive negotiations with his attorney. As part
of the conditions of his release, Hamdi had to leave for Saudi Arabia, renounce his
American citizenship, and agree to future restrictions on his travel (Brasch, 2005).
The only case in the U.S. raising the question of direct accountability for actions
taken on 9/11 involved the case of Zaccarias Moussaoui. The so-called “20th hijacker,”
Zaccarias Moussaoui, a Frenchman of Moroccan heritage, was arrested in August
2001 after acting suspiciously at a flight school in Minnesota. He would have been
the twentieth hijacker taking part in the terrorist attack on 9/11, arguably as part of
the team which hijacked the plane which crashed in a field in Pennsylvania. The
other three hijacked planes all had five hijackers, while the flight which crashed in
Pennsylvania had only four terrorist/hijackers on board. The other nineteen terrorists
all perished when they hijacked and deliberately crashed airplanes into the twin towers
of the World Trade Center, the Pentagon, and in a field in western Pennsylvania.
Thus, Moussaoui is the only individual to stand trial in the United States in direct
connection with the terrorist activities that occurred on September 11, 2001. What is
particularly interesting is that Moussaoui is being tried in the federal court system,
despite the fact that he is not citizen or national, and could equally be tried by the
military tribunals and as an enemy combatant. Thus, in the Moussaoui case, the
government made the decision to utilize the federal court system—with all of the
attendant rights and procedural protections afforded to the defendant—as opposed to
a military tribunal. As one author has written (in conjunction with the Padilla case),
the decision of trying someone in the federal court system as opposed to in a military
tribunal may have more to do with the strengths and weaknesses of the government’s
case, than any other factor. Thus, in the Padilla case, “when the government realized
that it did not have adequate evidence to charge Abdullah al-Muhajir (Padilla) with
a crime under U.S. law, it treated him as an individual believed to be a member
of a terrorist organization, thus he was classified as an enemy soldier in order to
prevent him from causing harm” (Wu, 2004). If this be the case, then the government
is unfairly “rewriting the rules on an as needed basis” (Wu, 2004) in order to avoid
the release of a suspect—being more concerned with ensuring the suspect does not
 The United States 49
cause harm, rather than ensuring that the government only prosecute cases where
independent evidence clearly supports conviction and will stand up in a court of law.
After several years of prosecution and Moussaoui attempting to represent himself,
he finally pled guilty to six counts of conspiracy to commit terrorism in April 2005. In
the spring of 2006, he stood trial in U.S. District Court in Alexandria, Virginia, as part
of the sentencing phase of his trial—whereby a jury was charged with deciding whether
Moussaoui received a sentence of life in prison without the possibility of parole, or death
by execution. The jury was composed of ten men and seven women—twelve of which
were ultimately charged with issuing a decision at the end of the sentencing phase. The
U.S. Government, which argued for the death penalty, asserted that Moussaoui’s lies and
intentional misstatements to law enforcement in August 2001 directly contributed to the
deaths of thousands of Americans on 9/11, and that Moussaoui, therefore, contributed to
the murder of nearly three thousand individuals. As United States Solicitor General Paul
Clement asserted in the case, “At the time the defendant was stopped and questioned,
had he told the truth, there would have been an opportunity for the deaths not to occur.”
Ultimately, Moussaoui received a life sentence, as one of the twelve jury members did
not wish to impose the death penalty.
Richard Reid, the convicted “shoe-bomber,” took a transatlantic flight (Paris to
Miami) two days before Christmas 2001 and attempted to detonate explosives in his
shoe while on board the plane. Reid, who worshipped at a mosque in London, had
planned to simultaneously detonate his explosives as one of his al-Qaeda associates
had originally planned to do the same on another flight. The other individual, Saajid
Badat, got cold feet and never went through with his plans. He was arrested by British
authorities in 2003 and is now serving a thirteen year sentence, as will be discussed
again in Chapter Two. However, Reid attempted to go through with his plans, and was
thwarted by alert passengers. As the attempted crime occurred on board a plane registered
in the United States, U.S. law applied to his actions, and the U.S. had jurisdiction over
Reid despite his British nationality. He was convicted on a variety of charges ranging
from attempted homicide to conspiring to commit terrorist acts, and was convicted and
received a life sentence. In another attempted terrorism case since 2001, Iyman Faris, a
truck driver from Ohio, pled guilty to conspiracy and for providing support to terrorist
organizations. Faris specifically admitted to providing support and assisting al-Qaeda
by “researching and providing information about ultralights, extending travel tickets,
researching gas cutters, asking other individuals about gas cutters, surveying a target
(the bridge) and then reporting his assessments…” (Plea Agreement, United States
v. Faris, 2003). Faris has received a twenty year sentence under the plea agreement
accepted by the federal judge in October 2003.
The last case worth mentioning at this point involves John Walker Lindh, as his
case raises several interesting points regarding the way cases have been handled in
the United States. John Walker Lindh, known as the American Taliban, was captured
in Afghanistan in 2001. He allegedly joined the Taliban because he was upset with the
United States’ actions in the first Gulf War in 1991. Upon his apprehension and return
to the United States, he pled guilty to an offense involving the providing of support
to the Taliban, and agreed to a twenty year sentence (Houston Chronicle, 2002).
50 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Specifically, Lindh pled guilty to “supplying services to the Taliban and carrying an
explosive during the commission of a felony” (Neil, 2002). At his guilty plea hearing,
in responding to the judge’s question of whether he was guilty, Lindh affirmed his
guilty and then stated “I provided my services as a soldier to the Taliban last year and
in the course of doing so, I carried a rifle and two grenades. And I did so knowingly
and willingly” (Houston Chronicle, 2002). Lindh’s plea bargain is noteworthy in
several respects. First, Lindh agreed to plead guilty in order avoid more serious
charges (like treason), and to avoid the “enemy combatant” label (and corresponding
black hole in terms of procedural rights—or lack thereof). Thus, as mentioned in
conjunction with the New York Buffalo sleeper cell, the threat of being labeled as
an enemy combatant was sufficient for the defendant to cop a plea. If the label of
“enemy combatant” is approved by the Supreme Court as applying to American
citizens, then the government can use this as a powerful tool in securing guilty pleas
in cases like this—where defendants wish to avoid the “enemy combatant” label
at all costs. Second, it was argued that case represents a milestone event, wherein
the government has illustrated its intention to treat these terrorism-related cases not
as acts of war, but rather in the ordinary domestic criminal justice system, with
the attendant constitutional protections and procedural safeguards. Third, the case
is significant in a negative way in that the issue of the legality/permissibility of
Americans being labeled as “enemy combatants” was never called into question or
adjudicated by the courts. Thus, by Lindh submitting his guilty plea, the issue of
labeling an American as an enemy combatant (by virtue of fighting with an enemy
abroad) and depriving the individual of any procedural or legal protections (by virtue
of the “enemy combatant” designation) was avoided, as was the issue of naming an
American as a “terrorist.” The government had dropped more serious counts, such
as conspiring to kill Americans and engage in terrorism, in lieu of his guilty plea.
In commenting on the case, the prosecutor (U.S. Attorney Paul McNulty) said that
the guilty plea would save “limited and very vital resources” and that “this case
proves that the criminal justice system can be an effective tool in the fight against
terrorism” (Houston Chronicle, 2002). The issue of the constitutionality of naming
Americans as enemy combatants may be addressed by the Supreme Court in the
next several years. However, the issue could have been addressed more quickly had
Lindh contested his status as an enemy combatant and not pled guilty in an effort
to avoid continual labeling as such. The Padilla and Lindh cases both involve initial
application of the “enemy combatant” or “unlawful combatant” designation. The
key difference between the two cases is that Lindh was apprehended on foreign soil
and was actively engaged in supporting the resistance to U.S. forces. In Padilla’s
case, he was apprehended within the United States, and in anticipation that he might
commit a terrorist related offense in the future.
 Chapter Two

The United Kingdom

The U.K. has been battling the threat of domestic terrorism since the 1960s, primarily
based on the Irish Republican Army. However, within the last few years, the threat
of terrorism based upon the “occupation” of Northern Ireland by the U.K. has
waned, and the threat radical Islamic based terrorism has moved to the fore-front.
Indeed, the attack on New York City and Washington, DC, by al-Qaeda operatives
on September 11, 2001, also took the lives of British citizens as well. Approximately
sixty-seven British citizens perished with the nearly 3,000 Americans who died
at the hands of terrorists on 9/11. Immediately after the attack, Prime Minister
Tony Blair issued a statement indicating support of the United States and strongly
condemning terrorism and the terrorist acts of 9/11. Then, on July 7, 2005, the
U.K. unfortunately experienced a similar terror attack, as the one levied against
the United States in 2001. On July 7, 2005, a terror cell (the Abu Hafas Al-Masri
Brigade) perpetrated an attack on the London underground public transportation
system, detonated explosives on three subway cars and one street level double-
decker bus, resulting in the combined deaths of fifty-three people, and the injuring
of another 700 individuals. Several weeks later, on July 21, 2005, copycat attacks
were attempted on the underground, but fortunately failed. However, despite
these July 2005 attacks, suffice to say that since 2001, the U.K. has promulgated
“some of the toughest anti-terrorism laws in the region” (Kubosova, 2006), which
at least according to Amnesty International—has needlessly sacrificed concerns
for human rights in the name of state security and the desire to be free from the
threat of terrorism. In this regard, the Secretary of Amnesty International, Irene
Khan, commented that “you cannot extinguish fire with petrol” (Kubosova, 2006).
Of course, the extent that the rigid British anti-terrorism measures are needed to
combat terrorism, or an inflammatory overreaction, is subject to legitimate debate,
discussion, and disagreement.

Constitutional Law Issues

It is often erroneously argued that the United Kingdom is less concerned with
restrictions on civil liberties, for example, in combating terrorism, as unlike the
United States, the United Kingdom lacks constitutional protections and a delineation
of civil liberties in the form of a constitutional bill of rights. Nothing could be further
from the truth. While it is true that the United Kingdom lacks a singular, monolithic,
definitive document that delineates all of the provisions in one document—that
52 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
one could find through “one stop shopping,” this does not mean that the idea of
constitutional law rights and governmental restrictions are not honored in the U.K.
Rather, the U.K. does enjoy constitutional principles, but those principles are not
derived from a singular document, but rather for a variety of different sources,
including the following: first, historical documents and events (for example, the
Magna Carta in 1215, or the promulgation of the 1688 Bill of Rights by Parliament,
which illustrate important principles pertaining to the Rule of Law in society, the
Supremacy of Parliament and the protection of civil liberties; second, important
foundational acts of Parliament (called the “unrepealed statutes of the realm”)
which set forth fundamental principles regarding governance and civil liberties (for
example, the Act of Settlement of 1700, which among other things, specified that
judges served for life if serving during good behavior and can only be removed by
Parliament); third, judicial decisions interpreting the fundamental statutes, which
add meaning to the above statutes; and fourth, customs and practices developed in
over time, called “conventions of the constitution.” The most important source of
constitutional law in the U.K. stems from statutory law enacted by the Parliament.
An excellent example of this is the Human Rights Act of 1998, which went into
effect in October 2000. This legislation incorporated all of the norms of the European
Convention of Human Rights into English law—and now a part of U.K. constitutional
norms. This law has been compared to the U.S. Constitution’s Bill of Rights (Terrill,
2003) and covers such germane topics to the war on terrorism as the prohibition of
torture, freedom of association and assembly, right to liberty and security, among
other things. Indeed, as of 1995, in the books published by Her Majesty’s Stationary
Office, and purporting to delineate the codification of constitutional law, indicate
that U.K. constitutional law is comprised of approximately 138 Acts of Parliament
considered of a fundamental and constitutional character. Principles such as the rule
of law, parliamentary supremacy, the liberty of citizens, operation of a constitutional
monarchy, operation of a unitary government, et cetera, are all principles derived by
the above sources. Furthermore, domestic courts reviewing cases under the Human
Rights Act (or the European Human Rights Convention), the courts have the power
of judicial review, a power that is lacking in the courts when reviewing ordinary
domestic legislation.
Despite that some of the sources from which constitutional principles are
gleamed are hundreds of years old, the U.K. constitution is generally viewed as
more susceptible to change and less “stable” or permanent in light of the fact
that even the most sacrosanct and sacred of constitutional law principles can be
changed by its normal legislative approach, sometimes referred to as the “Queen-
in Parliament” approach. Simply put, constitutional norms may be changed by a
majority vote in both chambers of the parliament (House of Commons and House
of Lords), with the nominal assent then rendered to the passed legislation by the
Monarch. In some circumstances, the House of Lords may be bypassed as well
in the legislative process, after a relatively slight delay. Thus, while the House of
Lords may ultimately delay certain measures, and while perhaps not strategically
wise, the House of Commons can ultimately by-pass the House of Lords on many
 The United Kingdom 53
measures. Additionally, the assent of the crown to legislation is truly a symbolic step
in the process, as the monarch has not vetoed a law since 1707. Thus, the House of
Commons has incredible control and power over all constitutional norms and rights.
This, of course, is a notable difference in approach than countries such as the United
States and Germany, for example. The U.K. approach would be like the U.S. House
of Representatives having complete control over constitutional norms in the U.S.
Additionally, it is argued that “constitutional law” is more imprecise, given the fact
that it must be gleaned from multiple sources, instead of being found in one singular
document called a constitution. For this reason, some scholars have referred to the
British constitutional structure as “indeterminate, indistinct, and unentrenched”
(Finer, 1995). It also means that the British constitution can be changed by a majority
vote in the Parliament, which many have suggested makes overly susceptible to
rapid changes during turbulent times. Many have argued that while America’s quick
legislative action in the fall of 2001 in the form of the Patriot Act will be subject
to constitutional challenges and reviews as the years progress, the same cannot be
said for the British Anti-Terrorism, Crime and Security Act of 2001, which also
passed quickly in the fall of 2001. Similar to the U.S. Patriot which passed with little
dissension in the U.S., the 2001 U.K. Anti-Terrorism legislation only encountered
temporary opposition in the House of Lords, which was overcome in several days
by the government’s promise to remove a provision in the new legislation which
would have made it a crime to incite religious hatred (London Times, 2001). While
the American legislation is arguably subject to constitutional restraints and reviews,
the British court system lacks the ability to conduct such a review with the notion
of overturning the British law, unless based upon laws pertaining to the European
Union or the Human Rights Act.
There have been many examples of civil rights long held sacred and as a
constitutional norm by the citizens, which have fallen to the wayside by simple
Parliamentary action in the form of promulgating a statute supported by simple
majority vote. For example, in the area of fundamental rules of governance, the
general evisceration of the House of Lords during the twentieth century was largely
the result of three major parliamentary statutes promulgated in 1911, 1949 and
1999. Another example deals with a right known well in the United States—the
right to remain silent (i.e., right against self-incrimination contained in the Fifth
Amendment to the U.S. Constitution)—which can be traced far before America’s
ratification of the Bill of Rights to the U.S. Constitution in 1791, and in fact, can be
traced back centuries in Britain. Indeed, legal scholars on both sides of the Atlantic
agree that Star Chamber abuses and tactics in the late 1600s played a prominent
role in the notion of having a right to remain silent and not being compelled by a
court to make self-incriminating statements. Many learned individuals around the
globe in common law countries still refer to the right to remain silent as a defense
against “Star Chamber tactics” on the part of the government. Yet, this sacred right
to remain silent was abolished by statute in 1994. A third example can be found in
the right against double jeopardy. The protection against double jeopardy means that
no person shall be tried or punished by the same state twice for the same offense—a
54 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
notion which is enshrined in the Fifth Amendment of the U.S. Constitution. Yet, in
2004, the absolute rule against double jeopardy was disregarded by Parliament, in
lieu of a rule that allowed for re-trial if new evidence is discovered since the first
case (Weinburg, 2004). This new U.K. rule is not inconsistent with the prohibition
against double jeopardy contained in the European Convention on Human Rights, as
Protocol 7, article 4, specifies that the rule of double jeopardy “…shall not prevent
the reopening of the case in accordance with the law and penal procedure of the State
concerned, if there is evidence or new or newly discovered facts, or if there has been
a fundamental defect in the previous proceedings, which could affect the outcome
of the case.”
The U.K.’s membership in the EU has also changed the dynamics of British
constitutional law in recent years in two chief ways, namely in the powers of the
courts to overturn acts of parliament as being unconstitutional and in the notion
that EU law being supreme over domestic laws to the contrary in areas within EU
sovereignty. First, regarding the power of judicial review (the power of courts to
overturn the acts of the legislative or executive branch as being contrary to the
constitution), the British legal system has long rejected the idea of judicial review.
In fact, over 150 years before the American Supreme Court created the power of
judicial review for itself in its famous case Marbury v. Madison (1803), the eminent
legal scholar Sir Edward Coke was advocating the practice of judicial review in a
famous early U.K. case, entitled Dr. Bonham’s case (1648). However, Coke was not
successful in establishing this power for the British courts, as John Marshall was
able to do in the United States a century and a half later. Thus, for its long history
(and despite the best efforts of Coke in Dr. Bonham’s case), the British legal system
has long rejected the practice of judicial review and the idea that courts should have
the power to stand in judgment of Parliament. Indeed, historically in the U.K., the
denial of judicial review was seen as an attribute of the constitutional principle of
Parliamentary supremacy. Thus, under domestic law alone, the British high court
(the House of Lord’s Lords of Appeal in the Ordinary) lacks the ability to invalidate
or strike down an act of parliament (again unlike the U.S. Supreme Court). In fact,
prior to 1966, the power of precedent was so strong, that the Law Lords could not
even reverse its own previous decisions.
Much of this arguably changed with the U.K.’s 1972 accession into the EU. In
1990, the European Court of Justice decided a case entitled R. v. Secretary of State
for Transport, ex parte Factortame Ltd. In the Factortame decision, the ECJ ruled
that, in the adherence to EU laws, British courts could suspend or overturn an act of
Parliament, if the court felt that the legislation was a violation of EU laws, largely
based upon the notion of EU supremacy set forth in the famous ECJ decision Costa
v. ENEL. Ultimately, in the Factortame litigation, the British Merchant Act Shipping
Act of 1988 was found to be in violation of EU laws/rules. The irony after 1990
is that EU courts or U.K. courts can exercise the power of judicial review as it
relates to acts of parliament—so long as it is an issue relating to the EU, when the
British legal system has generally denied such rights/powers to the domestic courts
for centuries. This means, at least in those areas, that the British constitution cannot
 The United Kingdom 55
be changed by the simple will/majority of the parliament. Furthermore, a central
concept of EU law is the supremacy of EU law over inconsistent domestic laws.
The EU legal developments since 1990 have prompted many critics to argue that
the U.K. has given up too much authority to the EU. Lord Beloff, for example, has
stated that “the British Constitution is no longer operative because Britain is already
a unit within a federal system.” As one writer has commented, “EC/EU membership
has unquestionably eroded de jure (legal) national and parliamentary sovereignty in
Britain. Whether it has eroded de facto (actual) parliamentary or national sovereignty
can really exist in the contemporary global economy are matters of much debate”
(Piper, 2004).

Anti-Terrorism Legislation in the U.K. Prior to 2000

In general, like the United States, there was not a singular, omnibus piece of legislation
dealing with anti-terrorism and homeland security before the Terrorism Act of 2000,
but rather a myriad of different laws and provisions for different regions/areas of the
country, initially passed to deal with issues pertaining to common criminal cases, but
arguably extendable to terrorist activities. Again, like the United States, many of the
law enforcement tools in place for combating domestic terrorism, were the same tools
that law enforcement had at its disposal for all criminal offenses occurring within the
country. No special tools to catch terrorists apart from those tools utilized to catch the
common criminal as well. While the Prevention of Terrorism Act of 1989 was probably
the most notable of the laws prior to 2000, this piece of legislation dealt more with
governmental powers relating to the specific issues pertaining to Northern Ireland,
and less with the prevention and deterrence of global or international terrorism. While
the 1989 Act defined terrorism as “the use of violence for political ends and includes
any use of violence for the purpose of putting the public or any section of the public
in fear,” and contained rules to prevent such acts from occurring, the scope of the Act
covered only Northern Ireland. Indeed, the first major comprehensive codification
of anti-terrorism legislation—the Terrorism Act of 2000—was largely an attempt to
codify into one source a myriad of existing anti-terrorism measures that had existed,
in some instances, for decades through other pieces of legislation such as the 1989
Prevention of Terrorism Act. The codification in 2000 was done largely to comply
with EU requirements that anti-terrorism provisions be put into one code which also
complied with applicable EU human rights requirements. Prior to this codification
brought about because of British participation with the European Court of Human
Rights, the U.K. could have been described as a hodgepodge of different laws, and
different police and intelligence organizations. Thus, in the sense of a patchwork of
different laws and different state actors, the old U.K. structure was consistent with
that existing in the United States on September 11, 2001. The U.S. structure changed
as a result of the devastating attacks on September 11, 2001.
In conjunction with the state of the law on terrorism in the U.K. prior to 2000,
a few words about police organization and structure are also relevant. Today, like
56 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
in the United States, there are a variety of governmental actors that play a role in
anti-terrorism and homeland security in the U.K. Interesting, the several layers of
governmental actors is a feature one would normally expect to see in a federalist
system (like the United States) where there local and national governments, and
not a unitary system (like the United Kingdom) where regional governments do
not exist. While the unitary system of the U.K. is still in place, and the laws of
Parliament, for example, are supreme over the entire country, the reader should be
aware of the recent advent of devolution as it relates to Scotland and Wales. In 1999,
legislative representatives were elected for a newly established Scottish Parliament
and Welsh Assembly—perhaps starting the U.K. down the road to a hybrid system
between a true federalism and unitary system. However, yet, despite the fact that
the U.K. remains a unitary system, several unique law enforcement factors are of
interest. First, despite being a unitary system, the U.K. has prided it self by having
local police forces, as well as law enforcement from the central government. Indeed,
one can trace this historical practice to shortly after the Norman Saxon invasion
of 1066. By 1285, Parliament passed a statute (Statute of Westminster) solidifying
this distribution of power between local constables and authorities from the central
government. In fact, by 1900, over 197 separate police forces existed around the
country (Terrill, 2005). Further, historically, when special disturbances occurred in
Britain, and special efforts at investigation were needed, a “special branch” or unit
was usually added onto the local police force. For example, in the earliest example,
a special unit to deal with domestic incidents of terrorism was created as part of the
Metropolitan Police force in 1883, stemming from a series of terrorist bombings in
London by Irish nationalists. Various police departments around the country created
their own “special” unit or branch in dealing with terrorist actions—again largely as
extensions of the local police force. By 1995, fifty-two separate police forces in the
U.K. had a “special branch” dedicated to counter-terrorism. The “special branch”
nomenclature is synonymous with “specialist operations,” and “Specialist Operations
Twelve” (or SO 12) denotes the umbrella organizational structure for all “special
ops” officers around the country. Additionally, among the local police forces, there
are two additional special branches worthy of mention, namely Specialist Operations
13 (SO 13) and Specialist Operations 19 (SO 19). SO 19 is roughly analogous to a
city’s local SWAT or hostage rescue team, while SO 13 are special operation agents
specifically charged with anti-terrorism responsibilities.
In 1909, both the MI-5 (centralized security agency now responsible for terrorism,
also known as the U.K. Security Service) and MI-6 (security agency responsible for
foreign secret intelligence, also named the SIS, or Secret Intelligence Service) were
created. Today, MI-5 is chiefly responsible for defending the country against threats
to national security (including terrorism, espionage, and other serious crimes against
the state), historically called “defending the realm,” while MI-6 is charged with the
collection of secret foreign intelligence, which can be utilized to defend the homeland
in concert with MI-5. MI-5 and MI-6 are roughly analogous to the FBI and CIA,
respectively, in the United States. In addition to MI-5 and MI-6, the Government
Communications Headquarters (GCHQ) is involved in terrorism, as it is the GCHQ
 The United Kingdom 57
that collects foreign communications (signals, e-mails, wire transmissions, et cetera).
The GCHQ was borne during World War I, out of a necessity to glean intelligence
about the enemy. Of course, as in the United States and elsewhere, the intelligence
arm of the various military commands also provides information and data regarding
homeland security—just as the Department of Defense does in the United States.
The U.K. Defense Intelligence Staff (DIS) unified the various military intelligence
commands in the mid-1960s. Finally, military and foreign intercepts of value to the
issue of homeland security are passed along to a Joint Intelligence Committee (JIC),
which will often again analyze the data and report to the government. The JIC is part
of the cabinet office.
One major criticism of U.S. law enforcement in the aftermath of 9/11 was that
there was a lack of coordination between a variety of law enforcement branches
on the state and federal level. As a result, the United States enacted a sweeping
change to federal law enforcement in the form of the Homeland Security legislation
which consolidated a myriad of federal agencies into the Department of Homeland
Security. The British law enforcement structure has consolidated the roles of the
various actors slowly over the course of the last three decades or so. It should be
noted that the consolidation of power/services in a unitary system like the U.K., is
considerably easier than in a federalist system, like the U.S. or Germany, as federalist
systems will have government actors at the state and federal government levels, all
of whom will want a seat at the governing table.
In terms of the “special branches” of the local police forces and their relationship
with MI-5 (the U.K. Security Service), the relationship went from separately
operating independent entities to inter-related. Prior to the mid-1980s, the special
branches of local law enforcement could be correctly described as operating
independent of MI-5. However, that has changed in the last quarter century. First,
in the 1984 Home Office Guidelines on the Work of a Special Branch, the “special
branches” of the local police forces were expected to “assist” MI-5 in cases involving
anti-terrorism and espionage. Second, in 1992, the task of combating IRA terrorist
activities was transferred entirely to the MI-5. Third, according to the 1995 Home
Office Guidelines on the Work of a Special Branch, “special branches” are now
charged with “serving” the MI-5. Thus, today, MI-5 is the chief actor in matters
relating to terrorism, espionage, national security, subversion, et cetera. Indeed, the
Security Service Act of 1989 now specifically gives MI-5 jurisdiction over cases
involving “national security.” Prior to the 1980s, “the defense of the realm” (now
called “national security”) was part of the jurisdiction of the special branches of the
local police departments. Now, the authority now lies with the MI-5, with the special
branches playing a supporting role. The MI-5 had actually lacked a statutory basis
delineating its reasons for existence prior to 1989.
Prior to 2000, many of the laws and processes utilized in the investigation and
enforcement of laws pertaining to national security were the same laws available to
the local “bobbies” in enforcing more routine offenses of criminal law. Additionally,
the laws said to be borne out of a concern for thwarting terrorism largely were created
to deal with the terrorist activities pertaining to Northern Ireland. Indeed, there did
58 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
develop a separate set of “anti-terrorism” laws that only applied to Northern Ireland
(for example, the Northern Ireland Emergency Provisions Act of 1973; the 1989
Prevention of Terrorism Act). Additionally, the Prevention of Terrorism Act of 1974
set forth principals and procedures for the rest of the U.K. Thus, there were two
separate terrorism procedures and rules—one for Northern Ireland, and one for the
rest of the U.K.—and both passed largely with IRA terrorism in mind.
Again, prior to 2000, in addition to the above, three other statutes are relevant.
First, in 1985, Parliament enacted a fairly broad law enforcement surveillance
statute. It was not until 1985 that the U.K. adopted special rules for the intercept
of communications (e-mail, telephone conversations, mail) in its Interception of
Communications Act in the interests of national security and homeland protection.
This Act allows for the police, with the issuance of a warrant from the Home
Secretary of State, to intercept communications (by opening mail, tapping phone
lines, reading accessing e-mail, et cetera) based upon any of the following grounds:
“(a) in the interests of national security; (b) for the purpose of preventing or detecting
serious crime; or (c) for the purpose of safeguarding the economic well-being of
the United Kingdom.” Much like some of the criticisms raised in regards to the
U.S. Patriot Act, the 1985 U.K. legislation has been criticized for not having proper
judicial oversight of the process (an official an the executive branch authorizes these
intercepts, as opposed to a neutral judge) and also for not specifying any intelligible
standards for the issuance of these warrants. The second statute prior to 2000 of
particular note is the Security Services Act of 1989, which not only authorizes MI-5
to handle cases relating to national security, but also placed MI-5 under the Home
Secretary and delineated the powers of the agency and the Director General of
the MI-5. The Security Services Act of 1989 also created an arguable “check” on
governmental abuses of the MI-5, by allowing individual public complaints, which
would be reviewed by a commissioner and a tribunal. The tribunal is comprised
of three attorneys who can determine, based upon a public complaint, whether
improper surveillance was conducted. However, this may not be analogous to a
judicial review of warrants in the U.S., for example, as from 1989-1999, none of the
roughly two hundred complaints were upheld as meritorious (Gill, 2003). The third
statute worth noting was a later version of the 1989 act, except directed at MI-6 and
the GCHQ. This statute, the Intelligence Services Act of 1994, among other things,
created oversight for the activities of MI-6 and GCHQ by creating the Intelligence
and Security Committee, which has been active in reviewing the actions of MI-6 and
GCHQ (Gill, 2003).

U.K. Anti-Terrorism Act of 2000

The U.K. Anti-Terrorism Act of 2000, unlike the USA Patriot Act, or the subsequent
U.K. 2001 Anti-Terrorism Act, came at a time of relative peace and tranquility—
coming into force on February 19, 2001, approximately seven months before the
horrific events in the United States in September 2001. When the 2000 Act was
 The United Kingdom 59
passed, domestic terrorism in the U.K. was arguably at its lowest point in over a
quarter century. Tony Blair’s Labor party thought that it would be a good time to
consolidate and codify all of the various laws pertaining to anti-terrorism measures
(including special laws like the Emergency Provision Acts applicable to Northern
Ireland) into one omnibus piece of legislation that would also satisfy provisions/
requirements of the Human Rights Act. This Act was meant to replace the previous
“temporary” and piece-meal legislation which applied largely only to Northern
Ireland. Thus, one goal behind the legislation was to make one set of laws that
applied to the country as a whole, instead of laws applied piecemeal to different
regions (e.g., Northern Ireland) or different settings. Another goal was to bring U.K.
anti-terrorism laws into “compliance” with the European Convention on Human
Rights (ECHR). For example, with the passage of the Anti-Terrorism Act of 2000,
the U.K. wished to remove its long standing derogation made under Article Fifteen
(of the ECHR) for police detentions (under Article Five of the ECHR) as it related
to practices involving Northern Ireland. While it did remove its long standing
derogation regarding Article Five of the ECHR, such removal was only temporary,
as when acts of terrorism occurred in America in September 2001, and the 2001
Anti-Terrorism Act was promulgated in the U.K., a new derogation was taken as to
Article Five, as will be discussed more completely below.
In the spirit of making the various terrorism laws consistent with human rights
obligations, the 2000 Act understandably sought to remove prior laws considered
to be inconsistent with human rights laws. Again, while many of the deleted laws
resurfaced after 9/11 in the 2001 Act, the 2000 Act did notably remove (if at least
temporarily) some controversial laws, including some of the following practices/
provisions: first, the removal of the authority to distribute “exclusion orders” to
subversive suspects—in order to send terrorist suspects from the U.K. back to
Northern Ireland without a hearing; second, the elimination of the power to detain
terrorist suspects for an indefinite period without any promise of a trial date; third,
the elimination of offenses that made it a crime to withhold information about
terrorist activities of others (reinstituted in the Anti-Terrorism Act of 2001), even if
one was not involved or had knowledge of the specific acts of terrorism. However,
even the Terrorism Act of 2000 distinguished between passively withholding
information, and the affirmative disclosure of information by individuals which
would likely prejudice a current or anticipated investigation of which the individual
has knowledge or reasonable cause to suspect. This provision is an “obstruction of
justice” type provision, which also appeared in the former Prevention of Terrorism
(Temporary Provisions) Act of 1989.
Thus, it would be a mistake to assume that the Anti-Terrorism legislation of 2000
merely weakened existing laws in order to bring them into compliance with Human
Rights laws. While the 2000 Act did attempt to bring U.K. laws into compliance
with the ECHR and the Human Rights Act, the 2000 Act did expand the law in
numerous areas. The language of the Act makes clear that the powers given the
police by statute or common law are not reduced. Furthermore, the Act includes
a new, expansive definition of terrorism. Prior to the promulgation of this law, the
60 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
offense of terrorism was defined by the Northern Ireland Emergency Provisions Act
of 1973 (section fifty-eight) and the Prevention of Terrorism Act of 1989 (section
twenty) as “the use of violence for political ends, and includes any use of violence
for the purpose of putting the public or any section of the public in fear.” Under the
1989 law, charges of terrorism were only available for those engaged in activities
relating to Northern Ireland, or in international terrorism (terrorist activities outside
of the boundaries of the U.K.), and not available for acts of domestic terrorism (i.e.,
attacks occurring within the U.K.), such as occurred in London in July 2005. While
the terms/language of the Northern Ireland Emergency Provisions Act could have
been interpreted broadly to include domestic terrorism, practically it was not—and
the crime of terrorism was limited to the situation in Northern Ireland.
The Terrorism Act of 2000 broadens significantly the definition and scope of the
crime of terrorism to include not only being the principal to a terrorist act, but also
those who assist or support the principal under the notion of accomplice liability,
in the U.K. or abroad. The Act also set forth a variety of provisions relating to the
investigation of terrorist organizations, both in structure and funding, including
restrictions on an individual’s ability to provide financial support for terrorist
organizations. Additionally, the 2000 Act provides a number of new substantive
offenses relevant to the war on terrorism, such as incitement to terrorism (either in
the U.K. or abroad), terrorist training, the criminal prohibition on financing groups
engaged in terrorism, and the offense of weapons training to suspect terrorists.
The 2000 Act also set forth a variety of provisions dealing with fighting terrorism
through financial laws, such as the means and methods of tracing and controlling the
terrorist suspect’s funds. Specifically, as it relates to financial measures, the 2000
Act set forth the following new substantive criminal offenses/provisions: making it
a crime to receive or provide money or property for purposes of terrorist activities
(section fifteen of Act); making it a crime to possess funds or property which are
intended for terrorist related uses (section sixteen); making it a crime to conceal or
launder terrorist money to make the possession or use of the funds to look legitimate
(section eighteen); and finally, making it a crime to fail to disclose information about
potential terrorism activities which comes into a person’s possession by virtue of a
business, trade or profession (e.g., banking activities) (section nineteen). In addition
to new substantive offenses, the 2000 Act changes procedural laws in several
notable respects, such as orders empowering law enforcement to compel banking
and financial institutions to disclose customer information (schedule six of the 2000
Act) and the power to monitor accounts pursuant to a judicial warrant (section thirty-
eight “A” and schedule six “A”). Under schedule six (paragraph seven), police can
compel a bank to disclose the customer’s current and previous addresses, financial
account number and date of birth. According to the Economic and Social Research
Council, as of January 2006, the U.K. has seized and/or frozen the assets of over
100 organizations and 200 individuals, in an amount exceeding one hundred million
dollars, and “the bulk of these assets have now been unfrozen and made available to
the current government of Afghanistan.”
 The United Kingdom 61
One of the most controversial and significant provisions of the 2000 Act is Article
Forty-One, subsection one, located in Part Five of the Act. This provision specifies
that “a constable may arrest without warrant a person whom he reasonably suspects to
be a terrorist.” This provision notably differs from U.S. and prior U.K. law in that the
officer is not required to articulate facts which support the reasonable suspicion that
the individual has committed or will commit a specific criminal offense, but rather
allows arrest based upon the suspicion of being “a terrorist.” Article Forty-One of
the 2000 Act may not strike many readers as expansive until one takes notice of the
new definition of terrorism, also set out in the 2000 Act as well. The broad definition
of terrorism put forth in the 2000 Act includes not only being a principal/perpetrator
of a terrorist act, but also includes a whole range of accomplice activities that are
considered “terrorist” as well, such as having a membership in an organization that
supports terrorism and providing financial support for terrorist groups.
The 2000 Act also notably attempted to shift the burden of proof from the
government to the defendant regarding the allegation of being a member or supporting
a terrorist organization. Thus, according to the original intent of Parliament, if the
defendant could not prove his or her innocence (or lack of affiliation with a terrorist
organization), a court would have to convict the defendant. Phrased another way, if
one is accused of belonging to a banned terrorist organization, the burden of proof
would be placed upon the individual to establish that they are not a terrorist, and
(again under the original intent of Parliament), the government would not need to
prove such membership (The Economist, 2003). However, the legality of this rule
was tested by the House of Lords in a 2004 case entitled Sheldrake v. DPP, 1 A.C.
264. In Sheldrake, the Law Lords analyzed the issue of whether Section eleven
of the Terrorism Act of 2000 (changing the burden of proof rules to rest with the
defendant in terrorist membership cases—as delineated above) was permissible in
light of Article Six of the European Convention on Human Rights and Fundamental
Freedoms (as well as section three of the U.K. Human Rights Act, which incorporated
the presumption of innocence rule into domestic law). Specifically, Article Six
(section two) of the ECHR specifies that “everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.” While the Law
Lords ultimately found that the law was not a violation of the ECHR or the Human
Rights Act, the Court did dilute the meaning of Section eleven (subsection two) of
the Terrorism Act of 2000 in only being an evidentiary rule (in terms of the order
of submitting evidence), and not a binding rule that mandated that a defendant must
prove his or her innocence while the state mutely stands by without the submission
of evidence.
In reaching the above conclusions, the Law Lords examined previous precedent
from the European Court for Human Rights on the interpretation of the “presumption
of innocence” rule. The Court then found that the presumption of innocence rule was
a fundamental right created to ensure that defendants received a fair trial from the
state. Furthermore, this rule directed towards a fair trial does not, by its terms or via
interpretative case law, prohibit the usage of rebuttal presumptions of law or fact as
an evidentiary rule. According to the Law Lords examination of previous ECHR
62 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
case law, rebuttal presumptions and shifting burden of proofs on the defendant could
be permissible so long as such burdens on the defendant were kept to a reasonable
level/limit, and should have some basis by the government when first enacted (i.e.,
the procedural burdens on the defendant were not arbitrary and/or capriciously set).
The Lords went on to conclude that the shifted burden of proof was not a violation
of Article Six of the ECHR, so long as the rule was construed as an evidentiary
rule. Thus, under section eleven of the Terrorism Act of 2000, the defendant does
have a burden of producing evidence rebutting the charges by the state, but the state
likewise has an obligation to put into the record sufficient evidence to prove by
“satisfied that you are sure” standards the defendant’s ultimate guilt. Phrased another
way, according to Lord Bingham, “while security considerations must always carry
weight, they do not absolve member states from their duty to ensure that basic
standards of fairness are observed” in the case. As one writer has explained, this
means that while the defendant does have some burden to produce evidence under
section eleven of the Act, the House of Lords refused “to accept that terrorism is the
ace of trumps [or]…as a justification for overriding the presumption of innocence
and associated principles” (Tausz & Ashworth, 2005).
Indeed, turning briefly to the concept of terrorist organizations, the Act (in Part
Two of the Act) delineates a listing of prohibited organizations, entitled “Proscribed
Organizations” in the 2000 Act, which current number approximately forty
international and fourteen domestic terrorist organizations (the fourteen domestic
terrorist organizations relate to ongoing issues/problems stemming from Northern
Ireland). The delineation of prohibited terrorist organizations appears in Schedule 2
of the 2000 Terrorism Act and is also viewable on-line at the Home Office website
at http://www.homeoffice.gov.uk. Examples of proscribed organizations to the 2000
Act include The Irish Republican Army, al-Qaeda, Egyptian Islamic Jihad, Hezbollah
External Security Organization, et cetera. By definition, and according to the Act,
supporting or becoming a member of one of these organizations is tantamount to
being characterized as a terrorist by association. The Act also creates an entity,
called the Proscribed Organization Appeal Commission, charged with reviewing
the propriety of certain groups being included on this prohibited organization list.
Interested parties may petition the Proscribed Organization Appeal Commission for
removal of an organization from the list, or the petition may come from a “special
advocate,” a government actor who is authorized to advocate on a behalf of a
group to ensure that all groups are treated fairly. The list of proscribed/prohibited
organizations is automatically reviewed in total every six months as well. However,
it is worth noting that no organizations have been removed from the list during the
period 2002-2004 (Carlile, 2004).
In interpreting whether one is a member or acting in support of a terrorist
organization under Section Eleven of the 2000 Act, the Law Lords have rendered
guidance to the lower courts that the organizational listing should not be strictly
construed. In the same term as the Sheldrake decision in 2004, the Law Lords decided
another terrorism case (R v. Z), which dealt with the question as to how rigidly/
strictly to construe the proscribed organizational listing, and deal with organizations
 The United Kingdom 63
not exactly referenced in the Annex. Specifically, in this case, three individuals were
prosecuted, among other charges, under Section Eleven of the Terrorism Act of
2000 for belonging to a terrorist organization, namely the “Real IRA.” However, the
Crown Court judge in Belfast determined that the “Real IRA” was not listed on the
proscribed organizational list and therefore directed that an acquittal should follow
as it relates to Section Eleven of the Terrorism Act of 2000. The problem in the
case was that while the IRA was on the Annex listing, the “Real IRA,” an offshoot
organization, was not covered under the umbrella of the IRA. The lawyers on behalf
of the defendants argued that the defendants could not be found guilty of a belonging
to an organization that was not specifically proscribed by the law. The defendants
further claimed that finding someone guilty of associating with an organization that
was not declared to be a terrorist organization prior to the prosecution would be
an ex post facto prosecution, which is in violation of Article Seven of the ECHR
and of the HRA. Specifically, Article Seven provides in part that “no-one shall be
guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offense under national or international law at the time when it
was committed.”
However, in reversing the Crown Court dismissal/ruling, the Law Lords
interpreted the list of proscribed organizations with some latitude to include
organizations which implicitly are considered to be one of the groups listed on the
Annex, or splinter groups of a listed organization. Specifically, as one Law Lord
described the rationale for the ruling:

We accept the submissions made on behalf of the Attorney General on this issue. We have
concluded that it was clearly the intention of the legislature to include the “Real” IRA as
a proscribed organization under section 3 and Schedule 2. Given the manner in which the
various groupings of the IRA had been proscribed historically, we consider that it should
have been apparent to any member of the Real IRA that he was guilty of an offence under
these provisions if he continued his membership or professed it. We are satisfied that no
violation of article 7 arises (R v. Z, 2004).

The court held that when Parliament had listed the IRA as a terrorist organization,
it had specifically contemplated and intended that term to include all splinter groups
as well. Further, “if this were not so, the absurd position could break away, give itself
a similar prefix, and be free of statutory proscription” (Walker, 2005). According to
one commentator, the idea was that Parliament “express its intention in this global
way since it thereby avoided both easy circumvention by outlaw groups resorting
to rebranding and also to the inconvenience of having to deal with the schisms of
fissiparous groupings seeking to invent new variants upon the same common name—
‘New IRA,’ ‘True IRA’ or whatever” (Walker, 2005). Thus, according to the Court,
Parliament intended “to embrace all emanations, manifestations and representations
of the IRA, whatever their relationship with each other” (Walker, 2005). According
to this interpretation, the morphing of new radical Islamic groups—such as a “new
Al-Qaeda”—would fall under the listing of proscribed organizations, even if not
amended to reflect the new splinter group. Of course, the sound legal position on
64 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
the part of the government would be to amend the listing every six months as called
for by the law in order to avoid ex post facto claims. However, the government
will not be hamstrung if a new group comes into existence between each six month
interval.
Lord Carlile, in his review of this law, has expressed continued caution in the
application of the above provisions to the criminalization of individuals who might
express support for such an organization, but are otherwise harmless individuals.
As commented by Lord Carlile, “a harmless but disturbed individual…could find
himself guilty of an offence if he shouted in a street a profession of member of, for
example, Cumann na mBan, even if nobody understood him and it was a delusion.
Each of those wearing t-shirts at a demonstration of young people with a genuine
belief that the International Sikh Youth Federation has been proscribed wrongly
could face prosecution as ‘arousing reasonable suspicion that he is a supporter of
a proscribed organization’” (Carlile, 2004). While such prosecutions have been
relatively rare to date, as Lord Carlile points out, the broad possible application of
these support and membership provisions are grounds for vigilance and supervision
in how they are applied.
In terms of procedural rights for suspects of terrorism, article forty-one of the act
empowers constables to arrest without a warrant when dealing with investigations and
operational settings dealing with terrorism. This can be contrasted with the ordinary
power of arrest under the Police and Criminal Evidence Act (PACE), which requires
that the police officer be able to articulate reasonable groups that the individual
has committed or is about to commit a criminal offense. Further, suspects arrested
for terrorism under Article Forty-One (subsection one), unlike suspects for normal
offenses, do not have to be told the reasons for detention or brought before a judge
for forty-eight hours following arrest. Furthermore, upon petition by the proper law
enforcement figure (usually a Police Superintendent or higher)—and depending on
the circumstances of the arrest, a judge may extend the detention without charges
for up to an extra five days. This has prompt one American law professor to remark
that “combining the original forty-eight hours with the additional five day extension
means that suspects can be held for an entire week without being charged, or in fact,
without the police ever having to show that there was reasonable suspicion that the
suspect committed or was about to commit any criminal offense” (Scheppele, 2004).
Finally, in addition to the above, Article Forty-One allows for the deprivation of
counsel for terrorism suspects for up to forty-eight hours after initial arrest if the
police determine that providing counsel might impede the police from gathering
evidence about an impeding terrorist act, or if providing counsel to the detained
would make it more difficult to apprehend other suspects. Based upon this provision,
contact with the outside world may also be denied for forty-eight hours. Thus, a
suspect may not contact family members or counsel during this period. This differs
from how suspects of routine offenses are treated in both the U.K. and U.S., whereby
counsel is allowed from the onset of detention/arrest, and at least in the U.S., the
suspect is told that he has one free call upon arrest. Adding insult to injury for human
rights advocates who are already critical of this provision, when legal counsel is
 The United Kingdom 65
finally permitted to be present, the attorney-client meeting must be done within the
presence of legal authorities. Thus, it is possible that law enforcement officials can
glean further evidence against the suspect based upon his conversations with his
lawyer during detention.
In addition to the detention provisions mentioned above, the 2000 Act also
provided greater detail in the area of law enforcement and search and seizures.
First, in terms of searching homes, the 2000 Act (Article Forty-Two) allows officials
to search homes upon receipt of a warrant from a justice of the peace based upon
“reasonable suspicions.” This judicial warrant requirement (previously issued by an
individual within the executive) makes this rule more in alignment with the United
States, as well as the standards of the European Convention on Human Rights.
The notable difference between the U.S. and the U.K. now is the standard of proof
needed for issuance of the warrant. In the United States, warrants are based upon
probable cause, while in the U.K. on “reasonable suspicions”—arguably a lower
standard/level of proof. Second, in terms of searching vehicles and pedestrians,
section forty-four of the 2000 Act gives any police officer (constable) the authority
to stop and search vehicles or individuals within previously authorized areas, even
without any individualized hunches or reasonable suspicion, and certainly without
judicial warrant. This section was enacted to give officers powers to deal with bomb
threats and protect the area subject to the threat. The only two significant restrictions
on this power are that the area where the search is to occur must be authorized
as a search-zone by an assistant chief constable or higher before the searches has
occurred and that the Secretary of State may cancel the authorizations at any time if
he/she disagrees with the rationale for the search authorization. Proponents of this
law argue that the decision to search is not exercised by “bobbies on the beat,” but at
a significantly higher echelon of the police leadership/management, specifically an
Assistant Chief Constable is two ranks removed from the rank of Chief Constable,
who is charge of the police forces of all of England (excluding the Metropolitan
Police and the City of London Police).
Article Forty-Four (subsection three) further specifies that authorizing blanket
searches in an area for a specified period of time should only be issued “if the
person giving it considers it expedient for the prevention of acts of terrorism.”
Thus, for example, the London Metropolitan Police Department declared the entire
London metropolitan area to be a search zone for approximately a month in August-
September 2003. In essence, this gives the police carte blanche authority to authorize
blanket searches of vehicles and individuals of an entire area—without any judicial
oversight. This one month authorization was subsequently challenged, but upheld in
the courts. Another provision (section thirty-five (subsection 5)) allows the police to
cordon off an area and clear all vehicles and individuals from the area. This provision
also allows for an initial designation of fourteen days, but may be extended to a total
maximum of twenty-eight days. Critics say that zealous application of Article Forty-
Four could lead to governmental abuses beyond the need to protect against imminent
acts of terrorism. That is, during the time period and designated area, police will
continue to search for other reasons, even when the terrorist threat which prompted
66 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
the authorization may have dissipated. Critics of this law believe that the provision
gives law enforcement the power to harass certain groups or individuals once the
authorization has been issued. For example, on March 22, 2003, the police utilized its
powers under Article Forty-Four of this law in order to search all protesters arriving
by bus in regards to a protest occurring outside of the Royal Air Force Fairford base
in Gloucestershire, Great Britain. According to the protest organizers, the searches
took an enormous amount of time, and many protesters were unable to attend the
actual protest given the delays—and the searches, if the protest organizers are to be
believed, were done largely to have this detrimental effect upon the protest (Laporte,
R. v. Gloucestershire Constabulary & Ors, 2004). According to a government report,
in 2005, 10,941 pedestrians were searched under the authority of Article Forty-Four
of the law, while only 177 were arrested by authorities. The search of over 10,000
individuals in 2005 is the most since the law first went into effect in 2001 (Akbar,
2006). Lord Carlile has estimated that searches under Article Forty-Four “could
be cut by at least 50 per cent without significant risk to the public or detriment to
policing” (Carlile, 2004).
However, it is worth noting that the power of search under Article Forty-Four
is limited somewhat by the police to seize and retain items under Article Forty-
Five. Under Article Forty-Five, the law specifies that evidence may be seized or
retained only to the extent the officer “reasonably suspects is intended to be used
in connection with terrorism.” Furthermore, under Article Forty-Five, the law
also limits the invasiveness of the actual search, and Article Forty-Five specifies
an officer (constable) “may not require a person to remove any clothing in public
except for headgear, footwear, an outer coat, a jacket or gloves.” Query under this
language whether an individual could be escorted to a private search area if officers
believe something may be hidden further down in a person’s layers of clothing, as
the Article only prohibits requiring a person to remove clothing “in public.” Second,
a reasonable interpretation of this “headgear” language would be that Muslim
women could be forced to remove the Islamic scarf, the hijab, in public—despite the
religious prohibition/beliefs to the contrary.
Like the USA Patriot Act, the 2000 Act provides new tools for ferreting out
financial supporters of terrorism—basically through the use of a circuit judge court
order—as well as making the knowing financial support of terrorism to be a separate
cognizable offense, along with corollary offenses such as money laundering. First,
in terms of law enforcement tools, per the 2000 Act, and like the USA Patriot Act,
basic financial information can be collected through a court “disclosure order.”
Such financial information (like account names and transaction description and
specifics) may be disclosed from private financial institutions to the government
through such disclosure orders without worries of violating privacy interests or the
Data Protection Act of 1998, which like the U.S. Privacy Act, generally prohibits
the disclosure of personal information. Of course, the issuance of these disclosure
orders must emanate from the judiciary, so this is a check on overreaching by law
enforcement. Further, this process is quite similar to the application for a warrant for
search and seizure in the United States. The warrant must be based upon probable
 The United Kingdom 67
cause that an offense occurred and the individual appears to be involved in the
commission of the offense. This means, that in both the U.S. and U.K., the judge
must have information suggesting the person is a terrorist before authorizing the
release of the financial information to law enforcement. Second, in terms of financial
support, it would be a crime to knowingly provide any aid—either directly (through
fundraising or donations) or indirect aid. The key is whether the person offering the
assistance knew of the terrorist activities. Thus, for example, according to one report
by Lord Carlile, it would not be a violation if a real estate agent took rent money on
behalf of an individual engaged in terrorism for rental property if the rental agent
lacked knowledge connecting his client with terrorism. However, this “scienter”
requirement (i.e., the criminal law requirement of a guilty mind) often practically
means that the defendant must provide evidence that he or she truly lacked the
required knowledge (or at least that is what Lord Carlile hypothesizes on his report
and commentary on this legislation). In terms of the new criminal offenses provided
for in this legislation, during the four years since this provision has been enacted,
it has been utilized very sparingly by the government. For instance, there was been
only one charge of money laundering and four charges of illegal fundraising in 2004
(Carlile, 2004).
Finally, the Parliament inserted a provision, considered by many to be a very
wise provision, that mandates that the laws be reviewed and analyzed each year
(i.e., annually) and that a report on the review be submitted back to the Parliament
for consideration. In the first few years since enactment, the reviews have been
completed by Lord Carlile of Berriew QC. Thus, there are reports available to the
Parliament and the citizen on the efficacy and operation of the laws. These reports
by Lord Carlile are readily available via the World Wide Web.
How successful has the legislation been in thwarting terrorism? At the onset,
it must be acknowledged that one can never know how many (if any) individuals
were deterred from committing acts because of the legislation, or how many terrorist
acts were prevented through proactive police work. Indeed, according the U.K.
Government, “the police and the security and intelligence agencies have disrupted
many attacks against the U.K. since November 2000…[and] many disruptions of
terrorist networks lead to prosecutions for other, non-terrorist offences…” (Her
Majesty’s Government, 2006). However, additionally, in terms of raw numbers as
indicia of success or failure of the legislation, the following numbers may be value.
According to the U.K. Home Office, between September 11, 2001, and September 30,
2005, 895 individuals have been arrested under Terrorism Act of 2000 (The Guardian,
2005). Of the 895 arrests, approximately fifty five percent (or 496 individuals) were
subsequently released without charge and approximately seventeen percent (or
156 individuals) were charged with under other legislation connected to terrorist
activities (e.g., regular criminal laws which often interconnect with terrorism laws—
like homicide, use of firearms and/or explosives, et cetera). Of the remaining number
individuals (roughly 243 individuals) arrested under the 2000 Act, but not released
or charged under other laws pertaining to criminal law, only twenty-three (or roughly
one percent) of these individuals were ultimately convicted of offenses under the
68 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
2000 Terrorism Act. Several more have been successfully prosecuted for terrorism
related offenses as between September 2005 and May 2006 (for example, the case
involving cleric Masri). According to the July 2006 U.K. Countering International
Terrorism Report, “62 people were subsequently charged with criminal offences
following arrests in 2005 under the Terrorism Act 2000…[and] in the first three
months of 2006, a further seven people have been charged with criminal offences
following arrests under the Act” (Her Majesty’s Government, 2006). Another report
reinforces these statistically lower numbers, stating that

…between September 2001 and September 2004, 664 people were detained under the
Terrorism Act and of these only 118 (17.8 per cent) were charged with offences under the
Act itself and 135 (20.3 per cent) with offences under other legislation (not necessarily
related to terrorism). This is a much lower charge rate than would be expected following
arrests under “ordinary” law such as the Police and Criminal Evidence Act (Dickson,
2005).

Thus, statistically, it must be said that the chief strengths of the above act are
not thus far to be found in its prosecution and conviction rates. Rather the law must
be defended on its non-judicial/non-prosecution features—in terms of surveillance,
search and seizure (with attendant deterrence effect when publicly announced),
disruption of planned criminal acts, et cetera. However, it must also be briefly
stated that if one of the approximately twenty-five or thirty people prosecuted and
incarcerated under these terrorism laws would have gone on to commit an act of the
magnitude of what occurred in the U.S. on 9/11 or in the U.K. in July 2005, then
most would say that the laws had proven its overall worth. This is an observation
that society may never be able to make, as the general deterrence of these individuals
made the subsequent crime not existent.

Legislative Responses in the U.K. after 9/11: U.K. Anti-Terrorism Crime and
Security Act of 2001 (ATCSA)

The second attempt at anti-terrorism legislation in the U.K. in the twenty-first century
came in December 2001, only approximately ninety days after the terror attacks on
the United States in Washington, DC, and New York City on September 11, 2001.
In fact, for those that believe that the United States promulgated its Patriot Act too
quickly following 9/11, it is worth noting that the new British legislation came out
within forty-five days or so of the U.S. legislative response. However, unlike the U.S.
who lacked comprehensive terrorism legislation in 2001 (despite the sound of the
1996 Anti-Terrorism and Effective Death Penalty Act in the U.S.—as discussed in
Chapter One—it was anything but comprehensive, and can be viewed as yet another
example of piecemeal legislation regarding terrorism prior to 2001), the U.K. had
just passed a major codification of its laws in the form of the Anti-Terrorism Act of
2000. Thus, the U.K. merely had to revisit its legislation from the year prior, and
propose amendments based upon the unique terrorist capabilities illustrated by al-
 The United Kingdom 69
Qaeda on September 11, 2001. Again, somewhat interestingly, despite the fact that
the U.K. had just finished amending its laws a year prior, it still took the U.K. a
month and a half longer than the U.S. to come out with post 9/11 legislation. Some
have used this fact as evidence and as a criticism of the U.S. legislation, that even an
“up-to-date” country like the U.K. still needed time to revise their laws.
According the U.K. home office, the 2001 Act was needed to achieve the
following goals/results: 1) restricting terrorist funding and finances; 2) ensure that
various governmental agencies communicate and share information properly on
issues pertaining to homeland security and anti-terrorism; 3) streamline immigration
procedures; 4) ensure the security of the nuclear and airline industries; 5) improve
security relating to dangerous substances that may be targeted/used by terrorists; 6)
extend police powers to available relevant forces; and 7) to ensure that U.K. laws are
in compliance with EU mandates as it relates to police and judicial cooperation, and
the need to combat against bribery and corruption. In achieving these broad goals,
the 2001 Act provides more detail and power to police in many of the clauses laid
out in the 2000 Act, while also expanding the scope/coverage of law enforcement at
key points. For example, as an illustration of how the 2001 act provides more rules/
details in the meaning of a provision of the 2000 Act, in furtherance of the blanket
search provisions referenced above, the 2001 Act allows the British Transport Police
or the Defense Ministry to authorize the blanket searches of areas for up to a twenty-
eight day period. However, of most note, the 2001 Act added several key provisions
in terms of how suspects are treated during the arrest, detention and interrogation
process, as well as provisions dealing with immigration. First, Section 117 of the
2001 Act reinstates the bystander cooperation rule, which was dropped by the 2000
Act. Prior to 2000, bystanders had to assist the police in the investigation, even to the
detriment of friends and family members, or face criminal prosecution themselves.
This provision was dropped in 2000, but was quickly reinstated in the 2001
legislation, meaning that people with information cannot remain silent during the
investigation. Second, the 2001 Act allows for much more invasive documentation
taken from the suspect during the detention and interrogation, ranging from DNA
samples to the photography of distinctive body marks like birth moles and tattoos. As
a result of this legislation, it must be recognized that the police are able to infringe on
traditional notions of privacy and bodily integrity in the interest of state security. The
law also allows the police to remove clothing which might impinge on the ability
to collect this physical information—which has been said to be a provision which
might be used to the detriment of veiled/cloaked Muslim women in particular. As
one law professor has written, this provision in the 2001 Act indirectly deals with
“Islamic scarves, the hijab, or other forms of dress that devout Muslim women wear
and that would cause enormous embarrassment and a sense of being disrespected if
removed” (Scheppele, 2004).
Additionally, of great note and controversy in the media, has been intersection
between U.K. immigration laws and its anti-terrorism measures. Indeed, perhaps
most notable of all of the 2001 provisions, are those provisions dealing with
immigration—at least based upon the amount of controversy of these clauses
70 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
continue to garner in the media. While many of the immigration/detention provisions
of the 2001 Act have since been repealed after a House of Lords decision on the
topic, a brief explanation of these powers are worthy of brief mention as the rules
become part of the basis for the 2005 Terrorism Act in the U.K. According to a new
immigration rule added in this legislation, the Secretary of State may certify a person
as a suspected terrorist if she/he “a) believes that the person’s presence in the United
Kingdom is a risk to national security and b) suspects that the person is a terrorist.”
The power to “export” unwanted individuals has long been a favorite approach in
dealing with terrorists from Northern Ireland, as well as those with radical pro-Irish
sentiments from the continent. This practice was officially eliminated in the 2000
Anti-Terrorism Act, only to again be reinstated in the 2001 legislation (and has again
been eliminated). The approach of this practice is quite similar to the deportation
powers given the executive branch in the United States after 9/11, which are still in
effect in the United States.
Several aspects of this “new” provision are worthy of mention—again, even
though it was significantly curtailed by the House of Lords in 2004. First, the legal
test for deportation is very subjective, namely whether or not the Secretary of State
personally “believes” that the person is a risk and “suspects” terrorist activities are
possible. Second, if the authorities arrest under these immigration provisions, as
opposed normal criminal laws, the authorities can detain the person indefinitely
pending deportation. Thus, for non-British citizens, the authorities can arrest and
detain under this immigration provision, and can then detain indefinitely while the
authorities claim to be processing the deportation. While there does exist an appellate
review of the certification (by the Special Immigration Appeals Commission), the
threshold for meeting the above requirements was also quite low. Furthermore, even
European Convention on Human Rights conditions was declared inapplicable and
of no support to the detained suspect, as the U.K. derogated to the immigration/
deportation provisions of the European Convention on Human Rights. The U.K.
has in essence claimed an emergency exemption to these requirements by virtue of
Article Fifteen of the European Convention on Human Rights, which provides that
“…in time of war or other public emergency threatening the life of the nation any
High Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation.”
Despite international criticisms, as the U.K. derogated from this provision, and the
derogation was largely upheld by the courts until a House of Lords decision in 2004
on this topic.
On December 16, 2004, taking the relatively rare approach of nine Law Lords
considering the case (entitled A v. Secretary of State for the Home Department),
invalidated the detention provisions of the 2001 Act (section twenty-three) as
incompatible with the European Human Rights Convention. Specifically, the
Law Lords held that section twenty-three of the 2001 Act was an overbroad and
disproportionate reaction to the alleged “public emergency threatening the life of the
nation” (under Article Fifteen of the ECHR explained above) (Dickson, 2005). That
is, the derogation process permitted by Article Fifteen specifies that the governmental
 The United Kingdom 71
action needed to protect the nation should be “strictly required by the exigencies
of the situation.” The Law Lords collectively agreed that the unlimited detention
without possibility of trial would be overbroad and disproportionate. While many
of the Law Lords had separate logic/rationales for concluding as such, Law Lord
Scott’s opinion was especially vivid in his description:

Indefinite imprisonment in consequence of a denunciation on grounds that are not

disclosed and made by a person whose identity cannot be disclosed is the stuff of
nightmares, associated whether accurately or inaccurately with France before and
during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a
result of section 23 of the 2001 Act, with the United Kingdom…I am unable to accept
that the Secretary of State has established that section 23 is “strictly required” by the
public emergency. He should, at the least, in my opinion, have to show that monitoring
arrangements or movement restrictions less severe than incarceration in prison would not
suffice (A v. Secretary of State for the Home Department, 2004).

In addition to declaring the legislation overbroad, the Law Lords also collectively
determined that the detention procedures violated Article Fourteen of the ECHR, as
it targeted a certain type of international terrorists (defined in part by the individual’s
nationality, origin or immigrant status), and not all groups. The Law Lords determined
that section twenty-three of the 2001 Act was therefore discriminatory, as Article
Fourteen specifies that nations may not discriminate in its laws “on any ground such
as sex, race, colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other status.” The Law
Lords were especially persuaded by the argument that Article Fourteen was violated
in light of the fact that the U.K. did not derogate to Article Fourteen.
However, despite the above, it should be noted, that despite the ruling, British
authorities continued to hold approximately twelve detainees in custody. The Law
Lords did not have the legal authority to mandate a release, and British authorities
argued that while they would comply with the ruling (in terms of future cases
regarding detention), the men currently being held would have to stay in detention
until such time as the Government could devise a new law (curing the deficiencies
pointed out above) and making the law compliant with the ECHR.
If the above were not bad enough for a detained individual/suspect, the evidentiary
issues are different from regular immigration and/or criminal cases, and the court
can order the exclusion of the suspect and/or attorney during the case if classified
information is introduced and discussed. Even in the regular criminal justice system,
effective 2005, the rules relating to hearsay evidence were significantly relaxed
by the terms of the Criminal Justice Act of 2003. In the immigration context, the
new law also allows for “much more closed evidence” being utilized in the cases,
“meaning stuff gathered by spookery, bugging and arm-twisting, that normally would
be hard to use in court” (“Coming Quietly,” 2003). Additionally, if not successful in
challenging the Secretary’s certification under this law, the indefinite detention will
stand as well. As the law clearly authorizes detention pending deportation, suspects
have very limited options in which to contest the indefinite detention. Indeed, since
72 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
2001, the specific cases bear this detail out. According to a newspaper article by
Martin Bright in London’s Observer, between 2001 and the end of 2003, no less than
fourteen individuals were being indefinitely detained under this law, most of which
having been held for more than two years, in very deplorable conditions (as outlined
in the author’s article) (Bright, 2003). Two detainees voluntarily left the country in
order to avoid the detention/confinement (“Coming Quietly,” 2003). This immigration
provision/power has become a very powerful weapon in law enforcement’s arsenal.
Some have argued that the exercise of powers under this law does not differ greatly to
the U.S. confinement of non-combatants indefinitely detained at the holding facility
in Guantanamo Bay, Cuba—except in terms of volume.
As the 2000 Act before, the 2001 Act contained several provisions relating to
the combating of terrorism through financial provisions. Most of the provisions
in the 2001 Act were to flush out the meaning of provisions and terms utilized
in the 2000 Act. Thus, for example, the 2001 Act defines which type of banking
activities fall under section nineteen of the 2000 Act, the provision dealing with a
bank’s obligation to disclose certain suspicious financial activities which might be
connected to terrorist activities. Several new powers of law enforcement to deal with
financial dealings of suspected terrorists were added into the law in the 2001 Act as
well. For instance, the 2001 Act set forth detailed provisions relating to the powers
of law enforcement to seize any cash or funds if there is a reasonable belief that the
funds were obtained through terrorist activities. The law provides rules relating to
both the powers of the police to seize money, the limits on said power, as well as
the rights of individuals to petition the erroneous seizure of funds. Under paragraph
three of schedule one, police may keep in custody money seized for an initial period
of forty-eight hours, and may seek renewable extensions of the detention for up to
three month periods with coordination with a magistrate judge (renewable up to a
two year time period). At the end of the detention period, authorities may proceed
with a forfeiture action in regards to the funds. Forfeiture rules are also spelled out
in a detailed fashion in both the 2000 and 2001 Acts.

Legislative Responses in the U.K. after 9/11: U.K. Prevention of Terrorism Act
of 2005

This legislation, enacted in March 2005 (given Royal Assent on March 11, 2005),
about six months before the attacks which occurred in July 2005, continued to
strengthen the tools at the disposal of law enforcement. The primary impetus of
this legislation was to cure problems with immigration detention provisions which
had been challenged as being in violation of the European Convention on Human
Rights and the Human Rights Act and which were therefore repealed (Part IV of the
Terrorism Act of 2001—as discussed above) by the House of Lords on December
16, 2004. However, unlike the two previous acts referenced above, the Prevention
of Terrorism Act of 2005 met with considerable resistance from Labor Party
backbenchers when it was first introduced in the House of Commons on February
 The United Kingdom 73
22, 2005. In all, fifteen backbenchers broke away with their own party and voted
against this legislation in the House of Commons. While the Act was passed by
a sound margin of over a hundred votes, this defection on the part of members of
the Prime Minister’s own party illustrated the growing discontent and anxiety over
increasing police powers to the detriment of civil liberties. The defection on this
legislation can also reasonably be said to be a foreshadowing of what would occur
in November 2005, when major provisions of a new anti-terrorism proposal were
actually voted down in the House of Commons, and where a record number of forty-
nine members of the majority party deserted the party in the Commons.
Upon approval by the House of Commons, the Terrorism Act of 2005 was subject
to robust debate in the House of Lords as well. The House of Lords insisted on several
amendments to the bill. The most significant of the amendments added to the law
was a sunset clause, which would allow the law to expire unless it was affirmatively
renewed by a subsequent act of the House of Commons and Lords. The expiration
and extension date for this legislation was in November 2005. Other amendments in
the House of Lords dealt with such issues as the burden of proof applicable for the
“control orders” created by the law, as well the amount of judicial oversight (if any).
Interestingly, one of the votes against the law in the House of Lords was Lord Irvine,
the former Lord Chancellor and close friend to Prime Minister Tony Blair. Lord
Irvine’s vote against the legislation was purportedly the first time that he had voted
against a provision supported by the Labor government, and again, is a foreshadowing
the developing reaction against these measures which would be fully illustrated in
the next substantive amendment to the terrorism laws. The law then was sent back
to the House of Commons, which rejected most of the amendments, and sent back to
the House of Lords. This process was repeated several more times, as the proposed
law bounced back and forth between the two parliamentary chambers several times
on March 10-11, 2005. Indeed, given the rancorous debates and legislative posturing,
the bill required the House of Lords to remain in session for a record thirty hours
(the longest continuously sitting House of Lords session in its recorded history).
Normally, where there is disagreement between the House of Commons and House
of Lords, the House of Commons can in essence by-pass the House of Lords under
the terms of the legislative process bypassing the legislation (over House of Lord
objections) after one year. However, this by-pass procedure could not be utilized
here, as the authorization for detainment of the individuals currently held under the
old law was set to expire on March 14, 2005. Hence, the Government could not
afford to wait before passing the law; otherwise several “undesirable” individuals
(in the view of the Government) would be released. A compromise was reached on
March 11, 2005, whereby the opposition party and critics conceded on the issue of
amendments to the law, while the majority promised in the legislation that the act
would be reviewed after a year. The law was enacted after Royal Assent several days
later.
One of the main provisions of this legislation is the creation of something called
“control orders,” which according to the terms of the Act, “means an order against an
individual that imposes obligations on him for purposes connected with protecting
74 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
members of the public from a risk of terrorism.” At least by definition, these control
orders deal with ramifications somewhat less than incarceration in some cases. Rather,
like perhaps regular restraining orders in the U.S., it would allow for the placement
of restrictions on how a person interacts with society—where he goes, when he
or she travels, et cetera. The control order could restrict an individual’s access to
cell phones or the internet, placing the individual under house/home arrest, putting
restrictions on association or communication with other individuals, restricting a
person’s freedom of movement, et cetera. For example, one individual of Algerian
origin (whose name cannot be divulged to the public pursuant to a British court
order) “wears an electronic tag around his left ankle and is allowed to leave his
house just four hours a day…only between 11:30 a.m. and 3:30 p.m. and may not
venture more than a mile away.” The individual is “not allowed to use cellphones
or the Internet, and any visitor to his house has to be cleared by the Home Office”
(Bennhold, 2006). Prior to being subject to a control order, this individual was held
in a maximum security prison for approximately three years, before being released
under “house arrest” in October 2005. Yet, despite being under state restrictions or
detention since approximately 2002, the man claims that no one has questioned him
or asked him about evidence. The individual commented that “since the day they
arrested me, I have never been asked any questions or told what the case is…How
can you defend yourself in a situation like that?” (Bennhold, 2006) Unlike Part IV of
the Terrorism Act of 2001 which specified that only resident aliens in the U.K. were
subject to the detention provisions (which was struck down by the House of Lords
as being in violation of Article Fourteen of the ECHR), the Terrorism Act of 2005
extends the application of the “control orders” to both British citizens and nationals,
as well as foreign nationals. Hence, one of the deficient provisions of Part IV of
the Terrorism Act of 2001 (as pointed out by the House of Lords) was remedied by
applying the control orders without regard to one’s nationality or immigrant status.
As with U.S. restraining orders, there are issues as to how long these “control
orders” should last, who can issue such orders and pursuant to what standards? As
with the operation of the Special Immigration Appeals Commission (referenced
above), the normal rules of evidence do not apply in hearings regarding the
imposition of these control orders (except in very narrow circumstances) and even
evidence obtained by methods such as torture are arguably admissible under this
process. However, the chief difference between the control orders authorized under
the 2005 Act, and the immigrant detention procedures under the 2001 Act (now
repealed), is that the control orders which detain or subject a person to deportation
are arguably subject to a more exacting judicial scrutiny. For example, at a hearing
regarding the Secretary of State’s issuance of a non-derogating order, the reviewing
court is empowered to consider whether the Secretary of State’s decision was flawed
in respect to any of the following: “his decision that there are reasonable grounds
for suspecting that the person was involved in terrorism related activity; his decision
that a control order is necessary for purposes connected with protecting members
of the public from the risk of terrorism; and his decision on the imposition of each
of the obligations imposed by the order” Peck, 2005). Further, for judicial review
 The United Kingdom 75
regarding the most serious derogating control orders, the court will confirm the
order if it agrees as follows: “it is satisfied, on the balance of probabilities, that the
controlled person is or has been involved in terrorism-related activity; it considers
that the obligations imposed as part of the control order are necessary for purposes
connected with protecting members of the public from a risk of terrorism; it appears
to the court that the risk arises out of or is associated with a public emergency in
respect of which there is a designated derogation from the whole or a part of Article
5 of the ECHR; and the obligations imposed by the control order are in a list of
derogating obligations set out in the designation order.”
While the U.K. Home Office has declared that the usage of control orders strikes
“the right balance between safeguarding society and safeguarding the rights of the
individual” (Bennhold, 2006), many have pointed out the problems with the control
order system and the law has been criticized on several chief grounds—which were
all largely the original subject of House of Lords proposed amendments to the law
(but which did not ultimately pass). First, the burden of proof (as indicated above)
is based upon the “balance of probabilities,” which is a much lower standard than
the criminal law standard of “beyond a reasonable doubt” or “satisfied that you
are certain.” This prompted Justice Jeremy Sullivan, a British High Court judge,
in striking down a control order for a suspect named “M.B.,” to comment in April
2006, that the control orders are “conspicuously unfair,” and that such control
orders are issued by “executive decision untrammeled by any prospect of effective
judicial supervision” (Bennhold, 2006). In another case decided on June 28, 2006,
Justice Sullivan ruled that the U.K.’s control orders relating to electronically tagged/
monitored individuals is not in compliance with the European Convention on Human
Rights when the suspect has not been charged or put on trial (Heard, 2006). Both
of these rulings have been appealed by the Blair administration, and according to a
Prime Minister Report submitted to Parliament in July 2006, “all existing control
orders remain in force (including the six cases in the second High Court ruling
which remain in force pending the outcome of the appeal), and the Secretary of State
will continue to make new control orders where he considers it necessary to do so”
(Her Majesty’s Government, 2006). The High Court rulings (among other recent
cases resulting in decisions favorable to criminal suspects and purportedly against
the government’s ability to protect the populace) have also prompted conservative
leader David Cameron to call for the revocation of the Human Rights Act and the
enactment of a U.K. Bill of Rights more akin to Germany’s Basic Law (see Chapter
Three) (“In a Right Muddle; Civil Liberties,” 2006). As Cameron commented, “the
Human Rights Act has made it harder to protect our security. It is hampering the
fight against crime and terrorism. And it has helped create a culture of rights without
responsibilities” (“In a Right Muddle; Civil Liberties,” 2006).
Second, the law dealing with control orders does not contain a “sunset” clause,
but only a requirement that the law be “reviewed” after one year. Critics argue that
this provision places the onus on the opposition party to try to get the law repealed
after one year, and alleviates the obligation on the government to re-justify the law
(and re-pass or renew the law) after a year—which would have been the case had
76 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
the amendment for a sunset clause been enacted. Finally, many critics noted that
the law in essence does away with the right of habeas corpus for British citizens
subject to this law, and that a principle of law that has been in existence for almost
800 years (the right of habeas corpus can be traced back to the time of the Magna
Carta in 1215) should not be vitiated, or if it were, certainly not by virtue of a rushed
legislative process. According to the critics, the law was rushed through in order to
avoid the release of several individuals which would have occurred several days
later in the absence of legislative action, and that a principle like habeas corpus
should not bypassed by such rushed legislation.

Legislative Responses in the U.K. after 9/11: U.K. Terrorism Act of 2005/2006

As with the Patriot Act in the United States, the terrorist actions on July 7, 2005,
and the attempted bombings on July 21, 2005, in the U.K. have prompted another
round of legislation pertaining to anti-terrorism laws and protecting the homeland.
Indeed, immediately after the July 7 bombings, Prime Minister Blair promised
tougher laws to combat terrorism. On August 5, 2005, Tony Blair announced his
twelve point plan for attacking terrorism by, among things, allowing police to detain
terror suspects for a longer period of time, creating new substantive crimes like the
glorification of terrorism, proscribing certain organizations as illegal, and creating
a “new power to order closure of a place of worship which is used as a centre for
fomenting extremism,” and under this power, the government “will consult with
Muslim leaders in respect of those clerics who are not English citizens, to draw
up a list of those not suitable to preach who will be excluded from Britain” (Blair,
2006). This last proposal caused much uproar amongst the Muslim communities in
the U.K.
This legislation was first introduced on October 12, 2005, and Prime Minister
Tony Blair staked much of his legacy as Prime Minister on the successful passage
of this legislation. In the formal presentment of this new legislation to the House
of Commons, Blair stated that law enforcement officials had stated an “absolutely
compelling” case for the need for this specific legislation, which included the need
(according to law enforcement) to hold terrorist suspects for up to three months
(ninety days) without charge (Jordan, 2005). In response to immediate criticism on
the grounds that the law violates civil liberties, Blair commented that his job was
to “protect people in this country and to make sure their safety and civil liberty to
life come first” (Jordan, 2005). Pollsters at the time reported that “a clear majority
in principle is willing to sacrifice civil liberties to a certain degree in order to make
Britain safer” (Jordan, 2005). Further, in addition to the fact that the Terrorism
legislation was meant to address concerns by law enforcement of certain deficiencies
in the law identified by various police officials after July 2005, this 2005-2006
legislation was also needed to domestically implement certain provisions of the
Council of Europe Convention for the Prevention of Terrorism.
 The United Kingdom 77
As proposed, the Act ran multiple pages and created new criminal law offenses
relating to terrorism, new rules on immigration detentions, and further enhancing the
tools of law enforcement to prevent acts of terrorism before it occurs. For example,
in the creation of new criminal law offenses pertaining to terrorism, the Act made
it a crime to engage in the glorification or encouragement of terrorism, either in the
United Kingdom or abroad. The Act further refined the offense of assisting in the
preparation or training leading up to the commission of a terrorist act. Under new
provisions dealing with the “preparation of terrorist acts and training,” one could
be subject to a maximum punishment of life imprisonment for obtaining and/or
possessing terrorist materials/tools, even it the materials were not necessarily used
in the commission of an offense. Further, it became a criminal offense to associate
or frequent the same locations where terrorists have received training and/or aid.
For example, under this law, a person could receive up to a ten year jail term if he
is convicted “merely” for frequenting a place where terrorist training is also taking
place. Furthermore, under this law, a person does not even need to be the recipient of
training, or be the trainer, in order to be found guilty by association. One’s association
alone would suffice under this law. This differs significantly from U.S. criminal
accomplice liability law, whereby one cannot be convicted for merely be present
at the scene of a crime (known as the “mere presence rule”), without knowledge of
the underlying criminality and some act in support of the enterprise. That is, under
U.S. accomplice liability law, one must not only be present, but also have underlying
knowledge of the common criminal enterprise or plan that is transpiring and commit
some act in furtherance or participation. Again, mere presence alone, without the
combination of some overt act and knowledge of the criminality of others, would not
be a criminal offense in the United States.
The new criminal offense of “glorification” received much commentary and
debate, as people would be prosecuted for their words alone. According to U.K.
officials describing the new law, a person could be criminally charged for praising
the terrorist attacks against the United States on 9/11, or in praising the attacks on
the London transit system in July 2005, perhaps even by calling the perpetrators
“martyrs” or “lions of God,” so long as the Government can show that the intention
was to encourage further attacks (The Washington Post, 2005). A criminal statement
under this law is defined as “a statement that is likely to be understood by members
of the public to whom it is published as a direct or indirect encouragement or other
inducement to them to the commission, preparation or instigation of acts of terrorism
or Convention offences.” Under the law, statements made via electronic mediums,
such as statements made in chat rooms on the internet or via e-mail, would also be
actionable. This was one of the more controversial and contentious aspects of the
overall Terrorism Bill, and this provision barely passed with a majority of twenty-
five votes when it came up for vote (BBC News, 2005). As discussed in Chapter
One, in the United States in light of the First Amendment, the Government may
not criminalize speech involving the “advocacy of illegal action” or even language
glorifying treasonous or terrorist actions (under normal sedition laws) against the
United States, unless such words are combined with the probable likelihood that
78 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
others will act imminently and immediately on those words. The latest Supreme
Court articulation of this requirement of “words plus action” being needed can be
found in Brandenburg v. Ohio (1969), wherein the Supreme Court held that under its
“clear and present danger doctrine,” that government could only restrict such speech
that is “directed to inciting or producing imminent lawless action, and it is likely
to incite or produce such action.” Words alone are not sufficient for purposes of
prosecution in this area within the United States, and have been recognized as being
protected under the First Amendment as far back as Justice Oliver Wendell Holmes’
writings on the subject in his famous dissent in Schenck v. United States in 1919.
In a similar provision, in Chapter Eleven, section two of the 2006 Act, a person
commits a criminal offense he distributes a terrorist publication. The Act defines
and prohibits such distribution as giving, lending, loaning, or selling publications
to another. The Act also prohibits that such publications even be transmitted
electronically (i.e., via e-mail). The above is a criminal offense if the sender of the
materials intended the materials “to be a direct or indirect encouragement or other
inducement to the commission, preparation or instigation of acts of terrorism,”
or was intended to aid another in the commission of these events. This provision
is clearly analogous to the glorification of terrorism above, and violations of the
provision call for imprisonment of up to seven years. Similarly, in Chapter Eleven,
section eight of the 2006 Act, it is a criminal offense to attend “any place, whether
in the United Kingdom or elsewhere,” where terrorist training takes place. A person
is guilty of violating this offense, if he or she knows that instruction or training is
being provided there for purposes of committing acts of terrorism, or the person
“could not reasonably have failed to understand that instruction or training was
being provided there wholly or partly for such purposes.” This provision calls for a
maximum possible sentence of ten years incarceration.
These above three provisions (glorification of terrorism prohibition, the
prohibition on distributing literature regarding terrorism, and the unlawful
attendance at a location where terrorism skills are taught) collectively enable law
enforcement to go after radical clerical leaders in Great Britain that promote and
solicit terrorist actions at home or abroad (cases like convicted clerical leader, Abu
Hams al-Masri, discussed below). These provisions are the closest the legislation
gets to Blair’s stated August 2005 goal of passing enabling legislation authorizing
law enforcement to “close places of worship used to foment extremism.” While such
an express provision was not ultimately included in the 2006 Terrorism Act, it was
part of Blair’s twelve point action plan issued on 5 August 2005.
Furthermore, in addition to potential criminal liability under the Terrorism Act
of 2006 for engaging in the promotion and/or glorification of terrorism, such conduct
by non-U.K. citizens is also grounds for the deportation. Specifically, the U.K.’s list
of Unacceptable Behaviours (officially published on 24 August 2005) delineates the
following factors as likely leading to deportation: “…writing, producing, publishing
or distributing material; public speaking including preaching; running a website;
or using a position of responsibility such as teacher, community or youth leader; to
express views which foment, justify or glorify terrorist violence in furtherance of
 The United Kingdom 79
particular beliefs; seek to provoke others to terrorist acts; foment other serious criminal
activity or seek to provoke others to serious criminal acts; or foster hatred which
might lead to inter-community violence in the U.K.” (Her Majesty’s Government,
2006). According to an official July 2006 report on this matter, the U.K. has deported
approximately thirty-six individuals on these grounds from August 2005-July 2006
(Her Majesty’s Government, 2006).
Perhaps one of the most contentious issues in the 2006 terrorism legislation
deals with how long suspects may be detained without charges being levied against
them, and the U.K. has gone the farthest regarding detentions for terror suspects
without a charge among the countries of Western Europe. Under the legislation (as
initially proposed), the law would have extended the period for the detention of
terrorism suspects without levying charges (or release) from fourteen days (which
was the current limit for terrorism cases prior to 2006) to ninety days. Thus, under
the original proposal, someone could be incarcerated for up to three months before
authorities had to decide on charges (or release). Of course, even a conservative
interpretation of this provision pales in comparison to the standard twenty-four to
ninety-six hour detention period, as originally set forth in the Police and Criminal
Evidence Act (PACE) of 1984. Under the well-established procedures delineated
in PACE, suspects must be informed of the reasons for the arrest, and an officer
(at the rank of inspector or higher) must conduct a review of the arrest within six
hours of detention, followed by subsequent reviews every nine hours. If detention
without charges is planned by the police beyond twenty four hours, the detention
must be approved by an officer of the rank of superintendent. After thirty-six hours,
the detention must be approved by a magistrate judge. Under PACE, a magistrate
cannot hold a suspect without charge beyond ninety-six hours. Thus, as one might
expect, the newly proposed 2005-2006 provision caused a maelstrom among critics
and same party back-benchers alike. Leading up to vote in the House of Commons
in November 2005, many protests were held. For example, in a town hall meeting,
London Mayor Ken Livingstone denounced the legislation. During the weekly
Prime Minister’s Question Time preceding the vote, Blair stated that voting in
favor of the anti-terrorism legislation was “the duty of every member of the house.”
During Blair’s presentation, Conservative MPs tried to drown him out by shouting
“police state.” Ann Cryer, a Labor Party MP who ultimately broke party ranks and
voted against Blair and his proposal, commented that “she ‘hated’ voting with the
Conservative Party against Blair, but that she believed that holding people without
charge for ninety days was excessive.
Ultimately, on November 9, 2005, the House of Commons voted 322 to 291
against the ninety day detention, a provision which Blair called the absolute “right
thing for the country” (Sullivan, 2005). Not only did Blair lose a major vote (and
his first major defeat after eight years as Prime Minister), but forty-nine members of
his own party (including eleven Labor party ministers) defected. Indeed, after losing
his first major vote as Prime Minister, opposition leader Michael Howard called on
Blair to resign, stating that “Mr. Blair’s authority has been diminished almost to a
vanishing point. This vote shows he is no longer able to carry his own party with
80 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
him—he must now consider his position” (Kfir, 2005). In response, Blair remarked
as follows: “I have no doubt where the country is on this,…the country will think
that Parliament has behaved in a deeply irresponsible way…Sometimes it is better
to do the right thing and lose, than to win doing the wrong thing” (Kfir, 2005).
The editors of The Sun were obviously in agreement with the Prime Minister, as
the front page of the paper called the law’s opponents, “traitors” (Kfir, 2005). Blair
further commented as follows: “what I can’t understand is how we can say, given
the strength of the terrorist threat we face, that the civil liberties of a small number
of terrorist suspects…come before the fundamental civil liberty of this country to
protection from terrorism.” Commenting on the rejection of this provision, Blair
stated that “I think it was the wrong decision, I just hope at a later time we don’t rue
it.” However, despite the rejection of the ninety day detention period for terrorist
suspects, the House of Commons did approve of a more modest detention period
of twenty-eight days (based upon an amendment by David Winnick—a Labor party
backbencher). The provision allowing for a twenty-eight day detention passed by a
majority of approximately thirty votes (323 members of Parliament supporting the
provision while 290 opposed it) (Kfir, 2005). While the rejection of the ninety day
detention period was a significant defeat for the Blair administration, the Parliament
still approved a detention period for terrorism offenses, a time which was double
the usual time of detention for terrorism suspects. Further, this twenty-eight day
detainment authority is triple the amount of detention authority available to the
government in terrorism cases as recent as two years prior to this augmentation. In
the 1980s and 1990s (per PACE), the maximum period of detention was typically
forty-eight hours. Then, commencing in 2001, the detention period slowly expanded.
Thus, the maximum period of detention for terrorism suspects (without a charge
being levied) was extended from seven to fourteen days as recent as 2004. This
detention authority has slowly been incrementally increased since 2000. Specifically,
in 2003, Parliament amended the Terrorism Act of 2000 by the Criminal Justice Act
of 2003 to allow for the increased detainments from seven to fourteen days. This
“new” fourteen day detainment authority went into effect on January 20, 2004 (Peck,
2005), and was subject to a great amount of controversy in Parliament (Carlile, 2004).
Thus, the U.K.’s present twenty-eight day detention period is substantial even when
compared with the state of law on this issue prior to 2001. While other countries have
extended the period of detention without charge for terror suspects as well, none have
gone nearly as far as the U.K. For instance, in December 2005, France increased its
detention period from four to six days (and retained existing provisions which deny
to suspects access to legal counsel during the first three days of detention). Italy,
again by way of example, extended its maximum allowable detention from twenty-
four hours to twelve days, and Spain allows upwards of thirteen days without charge
or legal assistance (Bennhold, 2006).
Of course, most of the provisions of the proposed legislation did pass the Parliament
in November-December 2005, and have gone into effect (most of the provisions, like
the “glorification of terrorism” provision, went into effect on Thursday, April 13,
2006. While the media extensively covered the rejection of the ninety day detention
 The United Kingdom 81
period by Parliament, little coverage discussed many of the other provisions in
the legislation. In addition to the provisions already noted above, the 2005-2006
Terrorism Act also added or revised provisions dealing with both criminal law and
criminal procedure regarding terrorism in the following areas: created the new
offense for using radioactive materials in furtherance or commission of a terrorist
act (clauses nine through eleven), and increased maximum penalties for the unlawful
possession of nuclear materials (clauses thirteen through fifteen); placed civilian sites
which investigate/experiment with nuclear power (i.e., university laboratories) under
felony/indictable trespass offenses—allowing a conviction for those not authorized
to be onsite (clause twelve); allowed law enforcement the power to seize articles of
terrorist publications without warrant, and made such property subject to forfeiture
(clause twenty-seven); and amended law enforcement warrant rules (clauses twenty-
five and thirty-one); among other provisions of the Act.

Other Unique Issues in the U.K. Pertaining to Homeland Security and

Anti-Terrorism Legislation

In February 2006, the U.K. Parliament also approved the long term plan to begin
collecting biometric information about its citizens, which in several years, will be
utilized for national identification cards which will contain information on each
citizen. The plan approved by Parliament would require that the identification cards
contain a facial photograph, two iris scans from each eye, and the finger/thumb prints
for each finger/thumb on both hands—or at least that is the data currently subject
to government collection (National Public Radio, 2006). While the collection of
the data at this point is not compulsory, after 2008, one will need an identification
card in order to get a passport to travel abroad. So, for those citizens who oppose
the collection of this data, they will not be able to travel abroad after 2008. This law
will put the U.K. in alliance with Germany, which has also moved in the direction
of biometric information being stored on national identification cards. The United
States does not have a national identification card, much less one that contains
biometric information.
Another interesting aspect of the British attempts at protecting the homeland
is in their extensive utilization of Closed Circuit Television (CCTV). It has been
reported that the U.K. is the most heavily saturated country of Western Europe in
terms of closed circuit television surveillance, with approximately four hundred
million pounds spent per year on these surveillance mechanisms between the
years 1996–2000 (Goold, 2004). Further, the central gem or jewel of the system
involves a camera system which can track virtually all activity on public streets
and thoroughfares within the one mile radius of the center of London. Indeed, it is
estimated by the Electronic Privacy Information Center that citizens of London are
filmed more than 300 separate times each day by approximately 1.5 million different
cameras situated throughout the city (Monaghan, 2006). The comprehensive
coverage of this camera system, dubbed the “ring of steel,” allows law enforcement
82 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
to automatically record the license plate numbers of each vehicle that enters the one
mile radius, and can, of course, specifically track and identify any vehicle which
appears to be driven in a suspicious or erratic manner. In addition to the “ring of
steel,” the use of CCTV is pervasive throughout other parts of the city. For instance,
all points of egress and ingress regarding the underground mass transit system are
subject to CCTV surveillance. The efficacy of the use of CCTV surveillance was
strongly illustrated for the world in July 2005, when the individuals involved with
both public transportation attacks were identified by images captured from this
system within hours of the attacks. The few critics of the validity of the system were
largely silenced after July 2005. While the CCTV system was not able to thwart the
attacks in July 2005, British law enforcement were able to rely on approximately
80,000 surveillance videotapes of the events immediately leading up to the attacks,
which allowed police to identify and trace the steps and actions of the culprits (Hays,
2006).
Unlike the criticism of the use of CCTV in the United States based upon vague
notions of a right of privacy while in public, the use of CCTV in the U.K. is largely
accepted by the British citizenry as a necessary sacrifice in the defense of the
homeland. Interestingly, the courts in the United States have fairly uniformly held
that there is no right of privacy while out in the public. This means that citizens agree
or acquiesce to reduced notions of privacy whilst out in public. Thus, when walking
down public streets, or entering a stadium to watch an athletic contest, individuals
are not entitled to right of privacy in not having their image captured via surveillance.
Sporting events are routinely subject to CCTV in the United States. Furthermore,
many public parks, buildings and spaces, like the National Mall in Washington, DC,
are subject to surveillance via closed circuit television. Nonetheless, a few critics
continue to clamor that such practice is a violation of right of privacy, despite the fact
that there is a dearth of case law in the United States in support of such arguments.
In the U.K., however, there is fairly uniform agreement that the usage of
CCTV does not violate any inherent right of privacy. Most of the controversy in
the U.K. deals not with the government’s ability to capture an individual’s image
in public, but rather how the government portrays or utilizes the data (as will be
briefly discussed below). In analyzing the British usage of CCTV, the two chief
laws relating to the practice are the Data Protection Act of 1998 and the European
Convention for Human Rights and Fundamental Freedoms, which the U.K. has
incorporated through its domestic legislation entitled the U.K. Human Rights Act
(effective 2000). First, in regards to the Data Protection Act, the law sets forth
certain limitations on governmental usage of personal data. For example, section
seven of the act provides that individuals have a personal and real right to data
(and a right to not have such data needlessly exploited). However, section twenty-
nine of the same act sets forth exemptions which enable the government to utilize
private data. Section twenty-nine specifically allows for the use of individual
data (such as images captured via CCTV) for purposes of national security and
for criminal investigations. Section twenty-nine allows the government to utilize
private data if it is required “for the purpose of safeguarding national security.”
 The United Kingdom 83
After July 2005, very few argue that the CCTV is not a needed tool for the purpose
of safeguarding national and homeland security. The CCTV was very useful in
bringing approximately sixteen individuals to justice based on the second (failed)
attack alone.
The second law which impacts the British practice of CCTV is Article Eight of
the European Human Rights Convention. Article Eight provides as follows:

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.

Select Recent Cases in the U.K.

First, as discussed above, the British courts lack the ability to hold acts of Parliament
to be unconstitutional, unless a dimension of EU law is raised in the case. So, at least
initially, there is not the same judicial check on legislation that there is in the U.S..
Second, it is argued that overzealous police can still be checked by the utilization
of some sort of exclusionary rule employed by the judge in criminal prosecutions.
The exclusionary rule provides that evidence taken by police in violation of rules
of procedure and process can, at the discretion of the judge, be excluded from trial
as a way to “police the police.” The notion is that police officers will adhere more
completely to the rules so as to not unduly damage their case when it comes to the
prosecution. Unlike the United States where the exclusionary rule is more or less
mandatory if a violation is established to have occurred (as the rule has its moorings
in U.S. Constitutional requirements), the absolute nature of the remedy is left largely
to the discretion of the trial judge in the U.K. While the discretion of the British
judge has been curtailed by the Human Rights Act of 1998, judges in the British
system have far more discretion in dealing with the admissibility of evidence under
the exclusionary rule. Additionally, in the U.S. under the exclusionary rule, other
evidence that was indirectly discovered as a result of illegal police conduct is also
excluded—under something called the “fruit of the poisonous tree” doctrine. This is
not the case in the U.K. So, if the case dealt with a confession forced out a defendant
in violation of certain constitutional protections, both systems allow for the judge to
exclude the confession as inadmissible to punish the police for the misconduct and
to avoid such conduct in future cases. In the U.S., the remedy of exclusion is much
more a given remedy, than in the U.K., where it is possible that the judge might in
some cases still allow the confession despite the police misconduct. However, what
if the forced confession pointed the police officers to a secret location that unearthed
new important information about the case? Under the U.S. “fruit of the poisonous
tree” doctrine, both the confession itself and any evidence collected as a result of the
84 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
illegally gained statement would be excluded as evidence. However, in the U.K., this
doctrine is generally not recognized. While an illegally gained confession might be
ruled inadmissible, other information/evidence collected as a result of the statement
would still be admissible.
Second, at least in a comparison between the U.S. and the U.K., the U.K. has been
much more active in prosecuting individuals involved in terrorist related activities.
A recent case involving a suspected terrorist concluded in Great Britain on February
7, 2006. The case involved the radical Muslim cleric, Abu Hamza al-Masri, who
“is the best-known Islamic leader to face charges in a courtroom since the terror
attacks of September 11, 2001” (Van Natta, 2006). Masri was the head Muslim
cleric of a mosque in London which attracted several militant Muslims, including
the convicted shoe-bomber Richard Reid, and convicted 9/11 conspirator, Zaccarias
Moussaoui. The United States has also sought Masri’s extradition to the United
States for trial, as he has been indicted for terrorism related charges of hostage taking
and conspiracy in regards to an attack on sixteen tourists (including two Americans)
in Yemen in 1998. Indeed, he was arrested one day after the United States requested
extradition of him, in May 2004. However, rather than to extradite, the British levied
its own charges against Masri in October 2004, claiming that he “preached terrorism,
homicidal violence and hatred” (New York Times, 2006) in sermons. Thus, Masri
was charged with advocating illegal action and violence against non-Muslims. Masri
was found guilty by a jury on February 7, 2006, on eleven counts of soliciting murder
(a crime under U.K.’s Offenses Against the Person Act) and promoting racial hatred
(a crime under the Public Order Act of 1986), among other charges. He argued in his
sermons that his followers should kill non-Muslims and Jews. He was also charged
with a violation of section fifty-eight of the Terrorism Act of 2000, as he possessed
an Encyclopedia dealing with Islamic Jihad, which according to prosecutors, is a
handbook/manual on how to conduct terrorist activities, such as making bombs.
Possessing such information under the 2000 Terrorism Act would be violation if the
material was “of a kind likely to be useful to a person committing or preparing an act
of terrorism.” Masri ultimately received a sentence of seven years, and will likely be
extradited to the United States for his participation in 1998 terrorist attacks in Yemen
after serving his sentence in Britain. Interestingly, another radical cleric, Abdullah
el-Faisal, was also found guilty of similar offenses in 2003. Abdullah el-Faisal was
convicted of soliciting murder due to his incendiary sermons and speeches wherein
he called for the murder of Jews, Hindus and westerners, generally. Prior to the
el-Faisal case in 2003 and the Masri case in 2005-2006, according to one source,
the charge of soliciting murder without directing the words to a specific perpetrator
or specific victim was a very rare charge not utilized since 1905 in the U.K. (The
Economist, 2003).
However, regarding the issue of free speech, the Masri case is the perfect
illustration of how the United States constitutional protection for speech differs than
from that in Great Britain. As described above, since 1969 and the Brandenburg
decision, the Supreme Court has required that only words which are combined with
the imminent likelihood of action can be criminalized by the government. Thus, the
 The United Kingdom 85
government must show that individuals who are the recipient of words of illegal
action are imminently/immediately ready to act on those words. In reports regarding
the Masri trial, the charges did not allege any specific act which followed Masri’s
words, or proof regarding specific individuals who were poised to act on the words.
Rather, Masri was charged for uttering the dangerous words alone. This fact was
illustrated by the presiding trial judge, Judge Anthony Hughes, who commented
during sentencing that “no one can now say what damage your words may have
caused. No one can say whether your audience, present or wider, acted on your
words” (New York Times, 2006). However, according to Judge Hughes, Masri’s
words caused “real danger to the lives of innocent people in different parts of the
world.” It is enough, commented Judge Hughes, that the words uttered by Masri
“created an atmosphere” in which the idea of killing and murder was “not only a
legitimate course but a moral and religious duty in pursuit of perceived justice” (New
York Times, 2006).
In terms of the prosecutions stemming from the terrorist activities to the London
Underground in July 2005, most of the prosecutions stem from the second copycat
attack. Because the first attack involved suicide bombers who perished in the attacks,
there were no individuals to put on trial after the fact. However, within days of the
second attack on July 21, 2005, approximately twenty individuals were arrested,
including one of the intended suicide bombers (MSNBC News Service, 2005). By
December 2005, British law enforcement had taken all five intended suicide bombers
for the failed second attack into custody. These five men (Muktar Said Ibrahim,
Ramzi Mohamed, Yassin Omar, Hussein Osman, and Manfo Kwaku Asiedu) were
charged with conspiracy to commit murder, attempted homicide, and other lesser
included offenses to homicide, and are currently scheduled to stand trial in Central
London Crown Court (the Old Bailey) in late 2006 or early 2007. Another eleven
individuals were charged with lesser offenses relating to the failed second attack—
such as failing to disclose relevant information about the suspects to law enforcement
or in helping the defendants evade arrest after the attempted bombing.
Furthermore, a group of seven individual defendants (Waheed Mahmood, Shujah-
Ud-Din Mahmood, Anthony Garcia, Nabeel Hussain, Jawad Akbar, and Salahuddin
Amin), ranging in ages between eighteen and thirty-three years old, were arrested in
March 2004, approximately a year and a half before the attacks on the underground
which occurred in July 2005. Specifically, in March 2004, the police arrested the
above named individuals, collectively in possession of approximately a half ton
of the fertilizer ammonium nitrate, which is volatile chemical substance that can
utilized to make large scale explosions/bombs. American terrorist Timothy McVeil
attacked a federal building in Oklahoma City, Oklahoma, in 1995, with a truck
packed with explosive chemicals made from large quantities of similar fertilizers.
The defendants were charged with possessing bomb making substances, as well as
allegedly conspiring to create an explosion “likely to endanger life” (Cowell, 2006).
The defendants had “most of the necessary components in hand” to build a dirty bomb.
In fact, the defendants had also inquired about the possibility of buying an atomic
bomb or a “radioisotope bomb” from the Russian mafia (Lyall, 2006). According to
86 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
prosecutor David Waters, according to statements between one of the defendants and
a witness, the defendants “wanted to do operations in the U.K…[as] the U.K. was
unscathed; [and] it needed to be hit because of its support for the U.S” (Cowell, 2006).
The defendants also planned and referred to multiple targets in their conversations
including shopping centers, a “big nightclub in central London” (Lyall, 2006), mass
transit, trains, et cetera. While the trial is expected to take months (and outcome still
pending at the time this manuscript was prepared), the case thus far has stood as a
positive example for the utility of electronic communication surveillance, which
is a hotly debated topic both in the U.S. and the U.K. According to the prosecutor
in the case, much evidence was discovered during a multiple month period when
the men had been under surveillance. In the taped conversations that resulted from
the surveillance, the various defendants made a series of statements and comments
where they spoke in a positive and admiring fashion in regards to recent terrorist
acts (such as the Madrid train bombing attack in March 2004) and often commented
about the appropriate time and date for similar attacks in Great Britain (Lyall, 2006).
It is worth noting again that these men were identified, investigated, and arrested
well before the underground attacks in July 2005. It is very possible that this cell also
planned an underground attack of equal or greater magnitude.
There have also been several cases in the U.K. within the last several years dealing
with actions committed by “lone wolf” defendants. For example, an ex-waiter and
stallholder in London, Abu Mansha, planned on attacking a British Army soldier,
Corporal Mark Byles. Mansha had apparently read stories about the exploits of
Byles in Iraq, where Byles admitted to killing approximately twenty Iraqi insurgents
during his six months in Iraq, several under hand-to-hand combat. When the police
raided Mansha’s apartment, officers found several newspapers delineating Byles’
actions in Iraq along with Byles’ address written on a piece of paper in Mansa’s hand.
The police also found a variety of anti-western DVDs which depicted such things as
Osama Bin Laden and the execution of a western hostage in Iraq and a diatribe where
Mansha referred to Tony Blair and George Bush as “dirty pigs.” The prosecution
argued in the case that Mansha wished to target Byles as retribution or retaliation
for the soldier’s actions in Iraq and Mansha’s goal was to “hunt down and kill” the
decorated soldier (Booth, 2005). In his defense at trial, Mansha claimed that he had
information about the British soldier because he was doing research and helping a
friend write a story about British Army actions in Iraq. Mansha also claimed to have
no strong political views, and was not a “strict Muslim” (Booth, 2005). After seven
hours of deliberation, a jury of seven women and five men determined that Mansha
was not being truthful and found him in violation of Article 58(1b) of the Terrorism
Act of 2000 for possessing information “likely to be useful to a person committing
or preparing an act of terrorism” (Birmingham Post, 2006). After the trial, the head
of Scotland Yard’s Anti-Terrorism Branch (Peter Cooke) commented that he “hoped
that Mansha’s conviction sends out a strong message that we will take firm action
to stop terrorism even if it is only at the planning stages. That is how we protect the
public from people like Mansha” (Booth, 2005).
 The United Kingdom 87
Another “lone wolf” case deal with Kazi Nurur Rahman, an East London man,
who was alleged to stockpiled a cache of three thousand rounds of ammunition,
along with three Uzis sub-machine guns, which are capable of expelling 900 rounds
a minute. While Rahman faces an array of criminal charges, ranging from violations
of the U.K. Firearms Act of 1968 (prohibiting the possession of such weapons) to
conspiracy with others with the intention to endanger life (a violation of the 1977
Criminal Law Act), he also faces terrorism charges. Hence, among the various
charges, Rahman is charged with two counts of violating the Terrorism Act of 2000.
Specifically, Rahman was charged with violating section seventeen of the Act, in that
he “entered into or became concerned in an arrangement, as a result of which three
Uzi firearms and 3,000 bullets is [sic] made available or is to be made available to
another, and he knows or has reasonable cause to suspect that it will or may be used
for the purposes of terrorism” (Tendler, 2005). In another charge, Rahman is accused
of being in violation of section fifty-seven of the Terrorism Act of 2000, in that he
possessed an Uzi sub-machine gun “for a purpose connected with the commission,
preparation or instigation of an act of terrorism.” The Rahman case was pending trial
during the final preparation of the manuscript for this book in February 2006.
Before the Hamza case, the most major successful arrest and prosecution of
a significant terrorist conspiracy involved the case of Saajid Badat. Saajid Badat
was arrested in November 2003 by British authorities and eventually convicted
of participating in a terrorist plot to blow up an airplane in mid-air at some point
between January 1, 1999, and November 28, 2003. Specifically, investigators pieced
together a conspiracy between Richard Reid, the “shoe-bomber” convicted in a
United States court in 2003 after attempting to blow up a plane in December 2001,
and Badat (Times Online, 2005). Badat and Reid both received training in al-Qaeda
training camps, and Badat spent another two years prior to 2001 in Afghanistan
supporting the Taliban regime. Reid and Badat both conspired (along with their al-
Qaeda handlers) to simultaneously blow up two different transatlantic flights between
Europe and the United States. However, unlike Reid who attempted to detonate his
shoe bomb in mid-flight in December 2001, Badat claimed to have changed his
mind, and did not attempt to detonate his explosives (which he did have aboard
several flights), and he claimed to abandon his plans before ultimately boarding
a plane to the United States. Because he pled guilty, Badat was convicted in April
2005 and received a thirteen year sentence for conspiring to blow up an airplane
between 1999 and 2003 (The Liverpool Daily Post, 2005). Earlier in the month,
another conviction in a terrorism related case was handed down by one of the British
Crown courts, namely the conviction of Kamel Bourgass, who was found guilty
of attempting to use Ricin spores to poison other individuals in London. Bourgass
received a seventeen year sentence for this offense in April 2005. Finally, with the
trials of the terrorists from the second attempted tube attack in July 2005, the U.K.’s
criminal justice system will continue to be busy with terror cases for years to come,
and will probably continue to far surpass the activity of the American judiciary in
handling terror cases.
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 Chapter Three

Germany

Like the U.K. (but unlike the U.S.), Germany has been combating domestic
terrorism for several decades, and Germany has had extensive experience in
tailoring its laws to meet the challenges of security. Thus, in the 1970s, Germany
revised its penal and criminal laws at several points, in part to be more responsive
to the terrorist threats faced by Germany at the time. From the 1960s-1980s, West
Germany was the target of multiple attacks mainly by a leftist terrorist organization
called Rote Armee Fraktion (Red Army Fraction), or RAF for short. In the 1980s
alone, for example, terrorist acts and violent protests/demonstrations accounted
for 15,000 crimes against the state (Katzenstein, 2002). In response, Germany
allocated a large amount of resources to the issue of homeland security against
terrorism, and according to one scholar, “disproportionately large were the 5 to 10
percent of the country’s police resources committed to defending state security”
(Katzenstein, 2002). For instance, from 1970-1979, there were approximately 649
terrorist related attacks that resulted in the deaths of thirty-one individuals and
the injury of approximately 100 more individuals, 163 individuals were taken
hostage, and between 1980-1985, the number of terrorist acts increased to 1,601
(Katzenstein, 2002). A notable attack was the slayings at the 1972 Olympic Games
in Munich—by Islamic based terrorists. Germany, along with Japan, were post-
World War II success stories in terms of economic revitalization—but such rapid
changes to the respective societies brought with it extremism on both ends of
the political spectrum—and both “Germany and Japan thus have lived with a
terrorist threat” since the end of World War II. While both countries are subject
to analysis in this book (for Japan, see Chapter Six), it is interesting to note that
the “the number of deaths resulting in terrorist activities were four times greater
in Germany than in Japan” (Katzenstein, 2001). This may explain why many have
described Germany’s anti-terrorism measures as being much stringent than Japan.
An alternative explanation as between Japan and Germany may be based upon
their respective approaches to policing and anti-terrorism laws. Germany has been
described as employing “expanded formal police powers and a high tech strategy”
(as will be discussed below), while Japan has taken a more “low-tech strategy”
(Katzenstein, 2001), as will be discussed in Chapter Six.
90 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Constitutional Law

Citations and references to Germany’s constitutional structure and legal system

perfectly illustrate the importance of Ernst Rabel’s “functional” approach to
comparative law—again, that “context” matters. Much of Germany’s current legal
and constitutional structure has its moorings in its turbulent and violent existence
during much of the twentieth century. Of course, German’s militarism and acts of
aggressive behavior against neighboring countries and its acts of genocide and the
causing of human suffering during the first fifty years of the twentieth century are
chief reasons for many of the laws reflected in the German Constitution (the Basic
Law of 1949, known as the Grundgesetz) which obviously try to avoid the repeat
of such human tragedies. Additionally, the ability of the Nazi party to rise to power
during the early 1930s, in part, by exploiting the terms of the Weimar Republic’s
constitution (now known as the “trauma of Weimar”) prompted the framers of the
German Constitution to include many clauses seeking to avoid a repeat of “power
grabs” under claims of emergency powers and threats to the homeland security. Thus,
Germany’s Constitution was clearly born (and is a reaction to) its recent history of
despotism and human rights abuses that came with the Nazi regime’s ascendancy to
power. Thus, as one considers Germany’s laws and approaches to homeland security,
one must specially take into account its history in regards to the degradation of civil
liberties, the issue of constitutional paralysis, and the state’s abuse of power in the
1930s and 1940s.
Indeed, cognizant of the Nazi ascendancy to power and abuse of power, the
framers of the Basic Law of 1949 were anxious to ensure that adequate constitutional
safeguards were in place to avoid repeating this horrific history. Thus, rather than
placing a bill of rights at the end of the constitution like with the United States, or
even placing a delineation of civil liberties in the middle of the constitution like
was done in the Weimar Constitution, the very first section of the Basic Law of
1949—approximately spanning the first nineteen articles—is a very comprehensive
listing of the rights of individuals, such as the right of opinion, press, teaching,
assembly, association, among other rights. According to the Constitution (Article
One—subsection three), these basic rights are absolutely binding on the legislature,
the executive and the judiciary, and are “directly enforceable law.” Furthermore,
at the very onset of the constitution (again in Article One), the Basic Law declares
that the “dignity of man is inviolable” and that states have “the duty” to “respect
and protect” these rights in all circumstances. Furthermore, unlike the U.K., the
German framers emulated the American system of judicial review (in part due to
the U.S. post-war influence), meaning the German Federal Constitutional Court is
a significant check on the abuses of government which might otherwise operate to
the detriment of the individual per the terms of the German Constitution. Thus, the
framers meant to make emphatically clear the importance of individual liberties and
the respect for human dignity.
Yet, perhaps the most interesting aspect of the German Constitution is the delicate
balance the framers attempted to strike between the protection of civil liberties of
 Germany 91
individuals, and the abuse of these basic liberties by those with despotic goals on their
mind. It was through the application of the Weimar Constitution, after all, that the Nazi
party was able to complete its ascendancy to power by exploiting certain provisions
of the Weimar Constitution. Thus, on one hand, the Basic Law delineates an array
of civil liberties and individual rights in the first sixteen articles of the Constitution.
Yet, in Article Eighteen, the framers attempted to ensure that the practice of these
rights would not ultimately be utilized to overturn the notion of Rechtsstaat, the Rule
of Law. Thus, Article Eighteen mandates that any of the foregoing individual rights
can be forfeited and/or abandoned if utilized in a manner which would subvert or
“attack the free democratic basic order.” No-where is the balancing test between the
need to protect civil liberties and the need to protect the homeland and government
more apparent than Article Eighteen of the German Constitution. Article Eighteen
provides, in part, that “whoever abuses freedom of opinion, in particular freedom
of the press, freedom of teaching, freedom of assembly, freedom of association, the
secrecy of the mail posts and telecommunications, property, or the right of asylum
in order to attack the free democratic order, forfeits these basis rights.” Furthermore,
the Federal Constitutional Court has held that the legislature may limit individual
freedoms if necessary to promote community rights and the democratic order
(Boyne, 2003). Thus, it is said that “Germany’s lawful state (Rechtsstaat) and its
democratic system with teeth (streitbare Demokratie) will not permit the enemies of
constitutional democracy to use the cover of the rule of law to attack the foundations
of the polity” (Katzenstein, 2002). The Court has also included “community security”
as a basic right to be enjoyed by citizens and therefore should also be a priority
of the state—meaning that the government’s anti-terrorism measures to protect the
collective society might outweigh individual claims.
However, as helpful as Article Eighteen might sound to government officials
wishing to crack down on dissident groups, legislatures must be mindful of Article
Nineteen as well. Article Nineteen of the Constitution specifies that “insofar as under
this Basic Law a basic right may be restricted by or pursuant to a law, the law must
apply generally and not solely to an individual case. Furthermore the law must name
the basic right, indicating the Article…[and] in no case may a basic right be infringed
upon in its essential content.” Of course, the statutory enactment must necessary to
achieve the state goals and in proportion to the goals to be achieved. Article Nineteen
further indicates that claims of civil liberty infringement under this article are fully
reviewable per judicial review and “recourse shall be to the ordinary courts.” Thus,
when the government passes a law relating to anti-terrorism measures, Article
Nineteen mandates that the law not infringe upon the “essence” of the right. This,
in combination with rigorous judicial scrutiny, correlates into significant restrictions
upon the power of the state to promulgate anti-terrorism measures to the detriment of
individual liberties. Article Nineteen (subsection four) guarantees to every individual
the right to bring a lawsuit if his or her rights have been infringed upon by public
officials. Further, no-where is the constitutional “suspicion” of government attempts
at derogation of civil liberties better illustrated in Article Seventeen (subsection a) of
the Constitution. This provision specifies that even when promulgating laws for the
92 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
national defense and in order to protect the population, the promulgated laws may
not restrict or derogate from the civil liberties enjoyed by citizens and delineated in
Articles One through Sixteen, except in only two circumstances. Specifically, Article
Seventeen only contemplates the derogation or infringement of civil liberties, even in
order to protect the population, only as it relates to freedom of movement (contained
in Article Eleven) and the right of the inviolability of one’s home (contained in
Article Thirteen).
A perfect illustration of how these foregoing constitutional rights may be cited
by German’s Constitutional Court in trumping anti-terrorism measures can be seen
with Germany’s 2005 law which allowed for the government to shoot down hijacked
commercial airlines (under scenarios like which occurred in the United States on
September 11). However, the Federal Constitutional Court struck down the law in
February 2006, declaring the law to be violation of right to life enjoyed by all persons
under the constitution (Abdullaev, 2006). Germany’s high regard for civil liberties
has been viewed with some frustration by certain officials in the Bush administration.
For instance, in the State Department’s 2005 World Report on Counterterrorism,
the U.S. State Department described Germany and its counterterrorism efforts as
follows: “German cooperation with the United States on the counterterrorism front
remained strong, although sometimes limited by Germany laws and procedures…
German laws and traditional procedures, as well as the courts’ long-standing and
expansive view of civil liberties, sometimes limited the success of cases prosecutors
brought to trial” (State Department, 2005).
In addition to the major governmental limitations noted above, at least one
major “option” in combating terrorism exercised by the United States appears to be
constitutionally impermissible for Germany, namely the notion of taking the war on
terrorism outside of the country’s boundaries and to the location where the terrorists
are located. This option is one that the United States has employed to combat
terrorism, with much ballyhoo no less. This doctrine, sometimes referred to as the
Bush Doctrine, is that the United States will not wait until an attack has occurred to
respond with the use of force under Article 51 of the UN Charter. Rather, the United
States will respond preemptively, under a notion of anticipatory self-defense, and
aggressively seek out the suspects on the territories of those nations which allegedly
harbor these individuals. While the argument of anticipatory self-defense to combat
terrorism under Article 51 of the UN Charter is one that the United States has argued
frequently since 2001 (see Chapter One), the reader should take note that Germany’s
ability to use military force extraterritorially in this manner is of highly dubious
constitutional authority. The use of military force abroad is one of the critical
differences in the approaches taken by the United States and the United Kingdom on
one hand, and Germany on the other. The United States and the U.K. have framed
all of its efforts under a broad notion of “a war on terrorism,” while Germany has
refused to view it as a war and has not responded with “war like” options.
The reason for these constitutional limitations also has its moorings in its
aggressive wartime practices in the first half-century of the twentieth century—such
as its actions leading up to World War I and II—as well as the unique impact of
 Germany 93
America on the formulation of then-West Germany’s Basic Law of 1949 (like the
U.S. influence over the formation of Japan’s constitution at the end of World War II).
Thus, like Japan, Germany’s constitutional structure places significant restrictions
of militarism and the use of force. Thus, at least one option in combating terrorism
that the United States has employed—namely the fighting of terrorism abroad in
host countries instead of at home—is presumably unavailable to Germany (at least
without the undertaking of extraordinary actions of several branches of government
in the “defense of state” as delineated more fully below). Specifically, Article Twenty-
Six of the German Constitution specifies that “Acts tending to and undertaken with
intent to disturb the peaceful relations between nations, especially to prepare war
or aggression, are unconstitutional.” Furthermore, Article Twenty-Six specifies that
individual actions leading to war are to be considered domestic criminal offenses—
subject to criminal prosecution. Interesting, in an illustration of how seriously this
clause of the constitution is considered, the Federal Constitutional Court, held in
2005 that Germany’s indirect participation to the U.S. in the Iraq war was a violation
of its Constitution and therefore illegal.
While Germany may defend itself from acts of aggression from others (under
Article 51 of the UN Charter for example), such determinations cannot be made
by the executive alone—unlike the practices of the U.K. and U.S.—and must be
made in concert with the approval of both houses of the legislature (the Bundestag
and Bundesrat). Again, the context of this provision stems from the abuses during
the Nazi regime, where the Nazi party was able to declare a state of emergency
and dissolve the constitution through then-infamous Article Forty-Eight of the
Weimar Constitution. Thus, the framers of the current constitution, in the attempt to
avoid this scenario, have required the approval of both chambers of the parliament.
Furthermore, prior to the authorization of the use of force, a determination that “a
state of tension” or “state of defense” exists (presumably with another country)
making the use of force necessary, must be made by the Bundestag (the lower house
or chamber of parliament). Both the determination that a state of tension exists, as
well as the actual approval of the use of force, requires a two-thirds majority vote
in both chambers under the terms of Article Eighty of the Constitution. While the
executive can make recommendations in this regard, the definitive power does not
reside with him/her.
Hence, adopting the U.S./Bush Administration mantra of a literal “war on
terror” (and taking subsequent action under domestic war powers) is significant
difference in approach. As University of Pennsylvania Law Professor Kim Lane
Scheppele has explained, these constitutional limitations have “strong implications
for anti-terrorism activities. It tends to channel anti-terrorism measures from a war
footing to a criminal-law footing because the defense-based measures are nearly
impossible to invoke. Thinking of the anti-terrorism campaign after September 11
as a ‘war’ was simply not an obvious constitutional possibility” (Scheppele, 2004).
As a German scholar Oliver Lepsius explained in a 2002 working paper entitled
“The Relationship Between Security and Civil Liberties in the Federal Republic of
Germany After September 11,” “in Germany, the attacks [of September 11] were
94 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
perceived as a qualitatively new type of an act of terrorism, not as an act of war.
For Germans a dividing line between terrorism and war was maintained” (Lepsius,
2002). For Germany, terrorism is primarily an issue of domestic laws and policing,
while the opposite appears to have been the approach of the United States under the
administration of George W. Bush. The Bush administration approach to viewing
the September 11 attacks “as tantamount to a declaration of war, [was] a reaction
seen by Europeans as an overreaction” (Lepsius, 2002). Further, “while September
11th caused Congress and the President to view legal policy through a wartime lens,
the devastation that Germany experienced during World War II caused German
politicians to reject war as the appropriate response to terrorism” (Boyne, 2003).
Yet, domestically, federal law enforcement has been vested with powers to
combat terrorism at home. This was done over time through several tools, including
the following: allowance of surveillance in certain cases; prohibition on anti-
constitutional activities; and criminal code revisions, among other things. First,
1968 amendments to the Basic Law empowered the federal government to bypass
the court system and allow for the surveillance of the mail and telecommunications
when national security is at issue. While normally the mail and communications are
declared to be “inviolable,” such rights of privacy are not absolute under Article
Ten of the constitution. While this power did enable the police to ferret out several
terrorists who belonged to the armed forces, the Office for the Protection of the
Constitution is said to have abused these powers in order to conduct “widespread
surveillance of leftist sympathizers” (Boyne, 2004) and the information was “used
by both the government and large companies to block the hiring of anyone who
had demonstrated support for the radical leftist opposition as well as to initiate
investigations under other provisions of the criminal law which were designed
to target dissent” (Boyne, 2004). Indeed, by the 1980s, the practice of electronic
surveillance was said to have impacted “as much as five percent of the West
German adult population” (Katzenstein, 2001). Germany also became a leader in
the world at utilizing a law enforcement search via computer programs and other
“high-tech” tools. For example, the German authorities inputted large amounts
of data into computers in order to identify patterns which might suggest possible
targets for terrorism investigations. One such system (Apsis) reportedly monitored
the activities of 33,000 individuals in the late 1980s (Katzenstein, 2001). Multiple
databases/computer programs were utilized, so no-one really knows for certain how
many people were scrutinized (at least initially) according to meeting one of the
computer program’s trigger conditions. Again, conservatively, for this reason, many
estimated the impact of this overall program impacted as much as five to ten percent
of the population. This data came from a variety of sources, including automobile
registrations, social security, child care payments, utilities payments, rent or mortgage
payments on residences, et cetera. Thus, for instance, this program would identify
those who paid for utilities or other items with larger amounts of cash or through
third parties. The idea was that potential terrorists would pay for items in cash or
through third parties in order to avoid the creation of paper trails with their names.
Thus, these individuals could be targeted (and selected for further surveillance) by
 Germany 95
means of a simple computer search of financial and public records (in this instance,
public utility records). Once individuals were identified as engaging suspect dealings,
other factors were applied to determine whether to begin direct surveillance. For
instance, “if they lived in large apartment complexes with underground garages and
unrestricted direct access to four-lane highways, even during rush hour, changed
their locks as soon as they moved in, kept their curtains closed, and received little or
no mail, they were put under direct police surveillance” (Katzenstein, 2002).
Second, in 1972, the Berufsverbot, or the “termination of radicals policy,” was
adopted by both the federal and state governments (Finn, 1991). This policy provided
that “only those persons who can show that they are prepared at all times to uphold
the free democratic order and actively defend this basic order, both on and off duty,
may be appointed to the civil service” (Finn, 1991). The law basically prohibits any
governmental employee from engaging in “anti-democratic” activities. According
to one author, “between 1972 and 1987, the government subjected millions of
civil service applicants to loyalty screening,” and (between 1973 and 1980) “some
1.3 million applicants were screened and about 1300 were ultimately barred from
public sector employment” (Boyne, 2004). However, as terrorists normally are not
government employees, many (Boyne, 2004) have suggested that the policy was
implemented more to remove leftist elements from the government (similar to the
McCarthy Communist purges in the United States in the 1950s). This practice is
likely to be not effective in combating modern terrorism from radical groups such as
al-Qaeda, as such members (based upon prior membership profiles) have not been
the sort of individual who has entered into governmental service. Also, the reader
should note that the Federal Constitutional Court did review the constitutionality of
this policy/law in 1975, and upheld the law as legitimately requiring that government
employees support the democratic order. However, the Court recommended that the
federal government could strengthen the legitimacy of the application of the law by
requiring evidence of a person’s unsuitability for the job (as well as the evidence of
membership or affiliation with an anti-constitutional group).
Article Nine of the Basic Law prohibits political associations whose organizational
goals and activities are in conflict or violation with criminal laws, or in contradiction
to the democratic and constitutional order. As such, the Federal Constitutional Court
is vested with the authority to rule on petitions from the federal government (by the
cabinet), or from the Bundestag, which request that a political party or organization
be banned on the grounds that the group seeks the subversion of the democratic and/
or constitutional order. The court has historically exercised this power to criminalize
membership in a neo-Nazi party or in a communist party/organization. Until 2001,
religious organizations were not subject to these bans. Indeed, in part because
of the Jewish persecutions during the Nazi regime, the post-war government in
essence declared religious organizations as off-limits to governmental investigations
pertaining to associational laws. Yet, with Germany’s recent anti-terrorism legislation
passed in 2001 and 2002 (discussed below), religious organizations are now subject
to the same laws and scrutiny as ideological and political groups have been subject
to for years. Since 2001, the German government has attempted to dismantle radical
96 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Islamic groups which advocate violence by banning such groups from meeting and/or
operating within Germany. Further, individuals attempting to join or attend meetings
of such a banned organization would be subject to criminal prosecution as well.
Thus, within months of the government lifting the previous protection enjoyed by
religious groups in Germany, in December 2001, the government banned the Union
of Islamic Association and Communities. This group had advocated that the Turkish
government be overthrown by force (Boyne 2003). Similarly, in January 2003, the
German government banned the Party of Liberation. This group was banned based
upon evidence that the group’s members were engaged in spreading anti-American and
anti-Jewish rhetoric (Boyne 2003). In more recent times, for example, in September
2004, “The First Arab Islamic Congress in Europe” was banned. Similarly, a German
court upheld in 2004 the banning of the organization entitled “Al Aqsa Foundation”
for soliciting funds for terrorist groups. In August 2005, the Interior Ministry also
banned the successor organization/spin-off organization of Al Aqsa, namely banning
the Yatim Children’s Aid group. Additionally, many of these bans have been enforced
with follow-up law enforcement activity. However, the Federal Constitutional Court
has also made clear that such associational prohibitions under Article Nine cannot be
applied in an ex post facto manner, meaning that the government may not prosecute
and punish an individual for membership in, or support of, a banned organization
before the party was declared illegal. However, the reader should also note that
this rule is without impact on the criminal law prohibition of forming or providing
support or assistance to a terrorist organization. Criminal laws in this area do not first
require a court pronouncement that the group is illegal; membership and/or support
in terrorist organizations are per se illegal from the onset.
Additionally, Germany’s federal system, like the United States, allows for
multiple layers of policing/law enforcement, on both the local and federal levels.
However, in Germany, in part because of its Nazi past, there are rigid constitutional
rules separating the powers of law enforcement as between the federal government
and the states. As a general principle, the federal government is responsible for
the gathering of intelligence and the coordination with police at the state level, but
does not actual charge and prosecutes cases. Specifically, the Basic Law (Articles
Seventy-Three (subsection one) and Eighty-Seven (subsection one)) specifies that the
federal government has the authority to regulate the cooperation between the states
in the area of criminal police and protection of the constitution, while the residue
police powers reside with the state governments. It has been said that this bifurcation
“prevents that the authorities responsible for the protection of the constitution hold
any police powers” and that such an organization prevents an “’imperial security
authority’ (Reichssicherheitshauptamt) such as was established under Nazi rule”
(Lepsius, 2001).
Thus, while both Germany and the United States are said to have a “decentralized”
police structure, the United States is classified as having a decentralized police
structure composed of “multiple uncoordinated” forces, whilst Germany’s force
is composed of “multiple coordinated” forces (Reichel, 1999). After World War
II, the Germans quickly lost patience with the American style of federalist law
 Germany 97
enforcement. By 1949, German officials “complained that communal police forces
in small towns were impracticable” (Reichel, 1999). In 1950, with the approval of
the Allied High Command, the police forces from the various towns and hamlets
were at least centralized into one police force for each state, or Laender. According
to Reichel, by 1955, the police structure was centralized in all northern German
states, and in 1975, the last holdout city, Munich, relinquished its communal police
force. This restructuring of the police force at the state level would be akin to big
cities in the United States giving up its municipal police force (i.e., NYPD, LAPD,
et cetera) and transferring all powers to the state wherein the city is situated. So,
today, the classification of Germany’s law enforcement structure as a “decentralized
police structure” is a bit misleading, as virtually all the “policing” occurs at the
state level, little at the federal level, and virtually none at the municipal level. So,
practically, there are seventeen police jurisdictions in Germany which might seriously
impact terrorism (the jurisdiction of each of the sixteen laenders plus that of the
federal government). Furthermore, each of the various states within the Germany’s
federalist system is said to be fairly uniform, with a high degree of coordination. As
Professor Reichel has stated, “anyone involved with the police would hardly notice
any difference from one federal state to the other” (Reichel, 1999).
Within each state, there is typically a division of law enforcement activities
between three distinct agencies: Schutzpolizei (uniformed municipal police);
Kriminalpolizei (detectives who develop cases and conduct criminal investigations);
and the Bereitschaftspolizei (paramilitary swat and stand-by forces). At the federal
level, there are three primary organizations charged with some semblance of
policing duties, namely the Federal Office of Criminal Investigation (known as
the Federal Criminal Investigation Office), the Federal Office for the Protection of
the Constitution, and the Federal Border Patrol. After 2001, the Federal Office for
the Protection of the Constitution is vested with authority to monitor attempts at
disruption of the peace by potential terrorists or terrorist organizations, and “has
now become an independent investigative authority with no limits on the geographic
scope of its investigations” (Boyne 2003). As its name suggests, the Federal Border
Patrol (similarly to the old INS in the U.S.) enforces and patrols its borders (except in
Bavaria). The Criminal Investigation Office is an office which seeks to regulate and
coordinate all law enforcement activities—both internally and externally (among
various other nation states). However, these offices are described as serving more
of an informational “conduit” (Reichel, 1999) role between the states, the federal
government, and other countries, rather than conducting and handling their own
investigations and operations. Thus, “the Federal Criminal Investigation Office in its
present form cannot be compared to the American FBI” (Jansen, 2003). However,
since 2001, the powers of the Federal Criminal Police Office have been expanded to
include, among other things, the power to investigate cases involving data sabotage.
Further, the Federal Intelligence Service has been given the power to gather
information from banking and telecommunication sources. Germany is also one of
the five initial member countries of the The Schengen Group, which among other
things, allows for the sharing of data about individuals through a database that is
98 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
available to all member countries, Central Schengen Information System (CSIS), and
corresponding reduction in border patrols and controls within Schengen participant
countries. Further, in a German-based initiative, on May 27, 2005, Germany and five
other EU countries agreed to a new mechanism which would allow for the expedited
sharing of personal information, DNA data, and fingerprint data (State Department,
2006). The U.K., in contrast, has opted out of the Schengen Agreement, opting instead
to maintain its own border control and system of entrance and passport controls.
Finally, being generally displeased with the Interpol as being ineffective, time
consuming and cumbersome, Germany pressured fellow EU members to develop an
EU alternative, which came into existence after the Maastricht Treaty—namely the
creation of Europol.
Indeed, the “United States’ version of extreme decentralization places the U.S.
in the minority among nations and is a procedure that some authors have freely
criticized” (Reichel, 1999). For those countries taking the opposite approach, less
intelligence on terrorism would slip through the cracks given the higher level of
cooperation and coordination. For those in the United States who might argue that
a decentralized police structure is constitutionally mandated (based upon notions of
federalism contained in the constitution), it might be helpful to look at Germany’s
approach, namely “decentralized,” but with a much higher level of cooperation. More
conclusions on the wisdom of centralized verses decentralized police structures are
addressed in Chapter One and Nine.

German Anti-Terrorism Legislation Prior to 2001

With frequent terrorist attacks, Germany began to revise its laws with a series of
internal anti-terrorism measures in the 1960s and 1970s that the United States and
the United Kingdom only really began considering post-2001. As such, Germany
could be properly considered as a leader in the promulgation of effective anti-
terrorism legislation, having passed certain measures decades before such initiatives
were seriously proposed in the U.K. or U.S. Germany has long had the general
crime prohibiting terrorism, and the offense of belonging to a terrorist organization.
Most notably, in 1976, Germany revised its penal code to make it a criminal act
to form a terrorist organization (129 and 129a StGB). Like is currently the case in
the U.K., Germany also amended its laws to make it a criminal offense when one
does not notify the police of the potential activities of others. While there may be
some agreement today as to what constitutes the more violent and radical forms of
terrorism, some state governments within Germany took an expansive reading of
the term “terrorism,” using the expansive interpretation to curb protests against the
government. For example, in 1969, some of the citizens of Heidelberg orchestrated a
sit-down strike/demonstration in order to protest a proposed increase in tram prices
for riders. The demonstrators were arrested after stopping traffic, and the provincial
court in Frankfurt imposed a brief incarceration on the protestors to “prevent their
anti-social behavior from infecting other citizens” (Boyne, 2004). In upholding the
 Germany 99
actions of the trial court, the Supreme Court for Bavaria held that the strike was
“violent” as it had brought traffic to a halt, and it had “as its aim to bring traffic to a
halt for a longer or shorter period of time in order in this way to obtain a hearing for
a particular view” (Boyne, 2004). Finally, the German Federal Constitutional Court
deferred to Bavaria, stating that there was no constitutional right for citizens to relay
a particular message to the government, and to allow otherwise “would result in the
legalization of terrorism practiced by militant minorities” (Boyne, 2004).
Similarly, in 1976, in a related measure, the German parliament enacted the Law
for the Protection of Communal Peace, which broadly dealt with the criminalization
of individuals who “supported violence by means of words, publications, and
films that could disturb the ‘public peace’” (Boyne, 2004). The legislation added a
provision into the criminal code (Article 88a), which made it crime to distribute or
disseminate written materials (or depiction of such words in films) that encouraged
others to commit crimes relating to homeland security. Further, like the Patriot
Act in the U.S., the Law for the Protection of Communal Peace substantively
amended several other provisions, including those on disturbing the peace (Article
126), on the concealment of a crime (Article 145d), the threatening of others with
a criminal action (Article 241), and the crime of offering awards and/or approval
for the commission of a criminal offense (Article 140). This measure also roughly
compares to the recent “glorification of terrorism” offense passed by the United
Kingdom in 2006. Interestingly, similar to the current standards of the United
States under the First Amendment and consistent with the United States Supreme
Court’s ruling in Brandenburg v. Ohio, the pre-1976 version of Article 88a required
that a person’s speech actually lead to the disruption of the public peace before
prosecution/conviction. As the reader may recall, under the post-1969 rule adopted
in Brandenburg, the advocacy of illegal action in the United States can only be
criminalized (consistent with the First Amendment of the U.S. Constitution) when
the words combine with the liklihood of action. Phrased another way, according the
U.S. Supreme Court, states (federal or the state governments) can only restrict speech
that “is directed to inciting or producing imminent lawless action, and is likely to
incite or produce such actions.” Germany’s Law for the Protection of Communal
Peace removed any connection between speech and the likelihood of action on the
words by others. For example, Bommi Bauman was charged and convicted under
Article 140 (the crime of offering awards and/or approval for the commission of
a criminal offense) for writing a book about his experiences as part of a domestic
terrorist organization in the 1960s. In the book, the author explained why he joined
the organization and why he left it. He also criticized the group at many points in
the book. Nonetheless, he was convicted, and the conviction was upheld on review,
because he “had not explicitly dissociated himself from the acts of which his friends
were accused.” In another example, several protestors were arrested and prosecuted
for handing out leaflets which addressed the confinement of members of the Red
Army Faction (a domestic terrorist organization in Germany), which allegedly
constituted the offense of “conspiring to publicize a criminal organization.” While
a lower appellate court suspended the sentence, the conviction and sentence was
100 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
re-affirmed at the highest court for Karlsrushe Leander, where the Court stated that the
punishments should stand, as the defendants were “convinced criminals, who regard
the court as the representative of the state whose overthrow is their goal” (Boyne,
2004). While Article 88a was repealed in 1981, the others provisions amended by the
Law for the Protection of Communal Peace remain in effect. Furthermore, the new
terrorism legislation (discussed below) appears to reintroduce again these practices
of criminalizing the “propagation of anti-constitutional” materials based upon the
words alone (i.e., no requirement of imminence of action on the words by others).
Under the new revisions, making statements in sympathy of a terrorist group would
not be criminal, but making statements which could be construed as “advertising
and lobbying for members and supporters is a criminal offense” under revisions to
Article 129, 129a, and 129b. Again, under the 2001 revisions, and in order to protect
against the overzealous prosecutions (under Article 129b) against political opponents
as was done in the 1960s, prosecutions under Article 129b must be approved by the
Federal Justice Ministry.
In the years after enactment, the law was not held to be invalid by either the
FCC (as it relates to the German constitution) or the European Court for Human
Rights. As one study points out, while many judges refused to convict people for
the “breach of the peace” offense, there also were courts/judges who rigidly applied
these offenses to the detriment of defendants (Boyne, 2004).
Another noteworthy change in the German Code of Criminal Procedure came in
1974, when the German legislature (in response to a previous decision of the FCC
which had held that no constitutional or statutory provision allowed the exclusion
of defense counsel in terrorism cases) passed provision 138a. Article 138a specified
the circumstances when defense counsel might be excluded from the courtroom.
Specifically, at the request of the prosecutor, the police, or the court, an attorney
might be excluded if he/she was suspected of being involved in the same criminal
actions which are the subject of the trial, or the attorney is believed to be obstructing
justice in the case.

Legislative Responses in Germany after 9/11

In the immediate aftermath of 9/11, it had become apparent that Germany played
a role in events leading up to that tragic day. Specifically, an al-Qaeda cell was
situated in Hamburg, Germany, where one of the ringleaders of 9/11, Mohammad
Atta, studied. There were also four additional cells thought to be in Germany, two
already subject to arrest warrants and two believed to be linked to Osama Bin Laden
(Tagilabue & Bonner, 2001). Furthermore, “radical Islamic subcultures that serve
as breeding grounds for terrorist activities are reported to be active in the country”
(Sinai, 2005) and German law enforcement have continued to make major arrests
of Islamic extremists in 2003, 2004 and 2005. Indeed, as early as 1997, Germany’s
Office for the Protection of the Constitution identified Germany as a safe haven
for foreign Islamic terrorists, largely due to Germany’s then existing constitutional
 Germany 101
protections for religious organizations. Compounding this is the fact that Germany has
a population of over 3.2 million Muslims—the most Muslims of any current member
of the European Union. Berlin also has the third largest Muslim/Turkish population
in the world. With the recognition that Germany was attracting the likes of Atta and
others willing to engage in radical Islam, Germany, like other countries of Western
Europe, had to come to grips with the need to pass legislation making the climate for
radical Islamic activities less habitable. As one scholar has written, “Germany faces
a real and imminent internal threat from its own Islamist communities, no less than
from bin Ladin’s al-Qaeda network. The same ideology that motivates bin Ladin also
fuels other Islamic terrorist organizations, such as Hezbollah, Hamas, ‘Al Tawhid,’
and the Islamic Jihad—all of which have made themselves very much at home in
the liberal garden of Germany. Now, the tiger has grown fat on German freedom is
no longer a threat only to those who live in faraway ‘danger zones’” (Fighel, 2002).
Furthermore, as a member of the North Atlantic Treaty Organization (NATO), and
as an ally of the United States, Germany expressed the desire to support the United
States in the immediate aftermath of 9/11.
Thus, as a direct result of 9/11 (and the German connection with 9/11 due to the
Hamburg cell), Germany would amended many of its laws relating to terrorism.
Germany’s Minister of the Interior, Otto Schily, called for a revamping and
strengthening of Germany’s laws relating to homeland security and anti-terrorism
on September 12, 2001. Additionally, the Germany’s Federal Criminal Investigation
Agency held its annual fall conference (Herbsttagung). However, after the terrorist
attacks on the United States on 9/11, the conference topic for fall 2001 was changed
to cover the issue of “Islamic Terrorism” as the main focus of the conference. On
the last day of the conference, the attendees and various experts to the conference
addressed the issue of “thoughts on the new security structure in Germany.” During
this discussion, the consensus of the group was that Germany’s existing laws should be
augmented/revised to reflect new threats, but that entirely new wholesale approaches
were not needed. Heinz Fromm, head of German’s Protection of the Constitution
office, commented on Germany’s long and successful history in combating terrorism
from the RFA and indicated that such laws/approaches would continue to serve
Germany well during the present time. Specifically, Fromm stated that “the house
has proven its worth over the past fifty years” and while “it might be necessary to
install a few new beams, but the existing system constitutes a foundation for the
rule of law that is without equal” (Jansen, 2001). Further, Jorg Ziercke, head of the
Ministry of the Interior, commented that “there have been simulations of terrorist
attacks on German soil, we are ready, we can respond when and as the situation
requires it” (Jansen, 2001). Thus, the consensus among the delegates/attendees was
that the existing police structure and laws were adequate to respond to the threats
relating to 9/11 style attacks. Also, the conference attendees specifically rejected the
notion of the need for the creation of a German or European “FBI” or a Federal (or
EU) Security Agency. Rather, according to many conference attendees, Germany’s
laws needed a little “tweaking” and, perhaps, a stronger working relationship to the
existing European Police Agency (Europol), as a means of gathering intelligence on
102 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
suspect terrorists. The result of this call to augment and revise Germany’s laws as
in two chief legislative initiatives in the first year following 9/11, called “security
packages” or “anti-terrorism packages.”
The German cabinet put forth “Security Package I” on September 19, 2001,
only several days removed from the attacks on 9/11. The law went into effect in
October 2001. In many instances, the legislation simply extended previously enacted
legislation. Thus, within several months of 9/11, the government strengthened airport
security (Katzenstein, 2002) by implementing security checks for all airline personnel
(Boyne, 2003) and “loosened restraints on phone tapping and the monitoring of e-
mail and bank records and freed up once-prescribed communication between the
police and the secret services” (Hoge, 2001). Germany’s Interior Minister, Otto
Schily, who once as a private lawyer represented suspects accused of terrorism of/
with the Red Army, has argued for giving the government more leeway in conducting
roaming surveillance as a terrorism tool (Hoge, 2001). Since 2001, for example,
German federal authorities can access the bank accounts of its citizens (to monitor
for unusual activities), and can also request information on individuals from the
German Postal Service and airline providers (much like the powers of federal law
enforcement under the Patriot Act) (“Coming Quietly,” 2003; “Tricky Business,”
2001). Germany has also re-instituted the use of computer programming software
to search through e-mails, on-line account information, public records, et cetera, in
order to help identify terrorist cells. Thus, since 9/11, regulations on surveillance
practices of have been promulgated in order “to facilitate government surveillance of
fixed-line and mobile telephone calls, email, fax and SMS; and telecommunications
operators are required to install and maintain electronic bugging equipment that can
be accessed by law enforcement agencies wishing to obtain traffic data relating to
named individuals, for which a court order is required” (House of Lords and House
of Commons Joint Committee on Human Rights, 2003-2004). These computer
surveillance practices, which one author has called “computer profiling,” were used
by the government in the 1970s in fighting the domestic Red Army terrorists of the
1970s, and employs software which analyzes demographic information (age, family
associations, religion, et cetera) to identify suspects. However, widespread abuses
occurred which prompted the federal government from initially terminating these
laws and, in turn passed the Federal Data Protection Law in 1977 (amended in 1994
and 1997), which as been described as the “strictest data protection laws in the EU”
(Boyne, 2003), in order to protect the individual against the collection of private
data. While critics of the re-instituted measures claim that the use of data would be a
violation of privacy, Schily has responded by saying that “the principle of protecting
the people’s data must not stand in the way of fighting crime and terrorism.” The
current legality/legitimacy of computer grid searches has not been definitively
adjudicated in recent years.
Most notably, “Security Package I” expanded the perimeters of Article 129a of
their penal code to define a terrorist organization as one that exists anywhere within
the twenty-five countries that comprise the European Union, as opposed to only
organizations located within the confines of Germany, even prohibits “declarations
 Germany 103
of sympathy” to these organizations if such statements were made to recruit members
or lobby for the group (Lepsius, 2002). While Article 129a was originally enacted in
1976, originally it only covered groups in Germany. Thus, the amendment in 2001
gave Germany the jurisdiction in regards to groups hiding any where in Europe.
However, a part “B” to Article 129, that did cause a great amount of controversy
and acrimonious debate. Under part B of 129, Germany has jurisdiction to prosecute
those who belong to or support terrorist organizations if the individual resides in
Germany or has German nationality—even if these individuals have committed no
offenses within Germany. The idea behind Article 129b was to give the state power
to prosecute and convict individuals who planned terrorism from Germany, and then
exported the offense to another country for execution (much like 9/11). It was not
clear whether this provision would pass or not (as there was a group within the SPD
party who were strongly opposed to the legislation), until external events occurred
to make the law a certainty. Specifically, on April 11, 2002, a bomb exploded outside
of the oldest synagogue in North Africa, killing nineteen tourists, twelve of whom
were German (Katzenstein, 2002). The subsequent investigation led to groups in
Canada and Germany.
Also, the legislation restricted the protections of religious groups regarding law
enforcement activities. Reflecting the history of state abuses in the persecution of
religious groups in the 1930s and 1940s, the German Constitution prohibited any
attempt by the Government to ban any religious group, even one that advocated
bloody terrorist actions abroad. Specifically, the Law governing Private Associations
dictated that faith-based groups could not be banned by the government. Prior to
2001, great deference was given to religious groups under this law, and the law
provided for minimal scrutiny of religious groups and religious groups enjoyed almost
absolute protections—leading to a situation where “extremist religious groups could
use religion as a protective cover for terrorist activities (Boyne, 2004). Indeed, one
author has stated that “it was considered bad politics to suggest that Germany was
buying the enviable safety within its borders by providing a safe haven for the kind of
fanatics who don’t think twice about the safety of other people, even, demonstrably,
other Muslims” (Kramer, 2002). However, since the 9/11 terrorism has its genesis in
the thoughts of radical religious beliefs, a new approach was thought to be needed
in Germany. Thus, both Security Packages combined had the effect of refining the
Private Association Law to exclude the application of the “religious privilege” to
any group (including faith-based groups) that promotes intolerance, violence and
terrorism. This provision has been utilized by the Government since 9/11 to ferret
out the roots of terrorism in the country from amongst radical/fundamentalist Islamic
groups. Indeed, in 2001, the Office for the Protection of the Constitution estimated
that there were at least twenty different militant Islamic organizations in Germany
with a total of 32,000 members (Katzenstein, 2002). It was further estimated by
some that approximately ten percent of the membership of these organizations
might utilize violence as a means of achieving political aims (Katzenstein, 2002).
It was against this backdrop that the first law enforcement action against religious
groups came shortly after the law went into effect, when on December 8, 2001, the
104 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
government conducted approximately 200 raids, involving approximately twenty
different religious groups (Katzenstein, 2002). While the law involved multiple
locations and groups, it was said that the main target was the Cologne Caliphate, run
by Metin Kaplan, who was a convicted murderer, had close ties to al-Qaeda, and had
once planned an airplane attack on a building in 1998. These raids have continued. In
April 2002, Germany authorities made numerous arrests of individuals—including
eleven individuals associated with the Al-Tawhid movement (which in turn was
linked to al-Qaeda and Abu Musaab Zarqawi, a leader in the al-Qaeda organization.
Thus, for example, in December 2003, the German police raided approximately
eighty buildings in the attempt to apprehend (and ultimately, disband) members
of a banned Islamic group called Hizb ut-Tahir. Police seized computers, financial
records and other documents (UPI, 2003).
As was the case with the United States’ Patriot Act, given the sense of urgency
immediately after 9/11, Germany’s Security Package I was promulgated under an
expedited emergency process, whereby the debate on the legislation was reduced
from six weeks to three weeks. Again, as with the U.S. Patriot Act, because the
law was put forward and enacted so quickly, criticism and comments of certain
parts of the law only emerged in the months following enactment. Thus, following
public hearings by the Bundestag’s Committee for Home Affairs, the Bundestag and
Bundesrat moved to amend the law. The result was “security package II,” which
became effective January 1, 2002, and modified approximately 100 legal provisions/
rules in approximately seventeen major laws and six administrative degrees relating
to terrorism. Some of the laws which were amended include such prior legislation as
the Federal Constitution Protection Act, the Federal Border Guard Act, The Asylum
Procedure Act, the Security Checks Act, the Passport and Personal ID Card Acts,
among numerous other laws. Given its broad scope, one would expect a long period
of debate and consideration, or at least a period significantly longer than the passage
of “security package I”—which was passed in the legislative frenzy immediately
following 9/11. However, “security package II” was passed just as rapidly as the
previous legislation. The bill was first introduced on November 8, 2001, passed the
Bundestag on December 12, 2001, and the Bundesrat on December 20, 2001, in
an overall process that has been criticized as “extraordinary hastiness” (Lepsius,
2002).
Thus, Germany had again enacted legislation designed at strengthening the
hand of federal law enforcement in protecting the homeland—and this was the cited
purpose for this second round of legislation—namely to strengthen the hand of law
enforcement to prevent terrorism and includes new regulations generally considered
to empower law enforcement. For example, the new law granted new authority to
the Federal Office for the Protection of the Constitution and the Federal Intelligence
Service to gather information and data on ways previously not allowed, as it pertains to
individuals suspected of terrorism related activities. The law also refocuses attention
on a broader definition of who is “radical” and subject to investigation. Prior to 2003,
and certainly in the 1970s-1990s, the focus was on groups which had the intention
of subverting the democratic order. However, in the post 9/11 world, the focus of
 Germany 105
investigations broadened to include those individuals intent on disturbing world
peace, international security and the integrity of other countries as well, as opposed
to those just set on disturbing the domestic constitutional order. Thus, many of the
existing laws were amended to permit the surveillance and gathering of evidence and
information on individuals who are threat to world peace and security.
This new law enabled law enforcement to access personal information from a
variety of sources, including university records, employment records, banking and
financial records, vehicle registration, and telephone records. This information
can be requested in order for law enforcement to analyze “financial flows, account
movements and communication paths of various groupings” (Lepsius, 2002). Similar
to the financial provisions of the U.S. Patriot Act, financial institutions must provide
the customer information to law enforcement without any compensation for the
costs of collecting and forwarding such information. Further, similar to the national
security letters issued in the U.S., “customers in question cannot be informed about
these requests in order to prevent information from leaking and investigations from
being compromised” (Lepsius, 2002).
The law also covers the collection of personal data from telecommunication
services such as the telephone, internet and e-mail. According to one scholar, “people
under surveillance are not informed and thus cannot protest against the measures
but have to trust that the parliamentary committees will objectively examine their
case.” Under German law, government surveillance regarding telecommunications
are limited under Article Ten of the Basic Law (protection of personal information)
and must be justified to a parliamentary committee and a body called the GS-10
commission (named after Article Ten). The committee, roughly analogous to the
operation of a FSIA court in the U.S., is informed about governmental surveillance
programs and acts as a check on government action and can report to the full parliament
any issues or problems. The GS-10 commission, comprised of four deputies picked
by the parliamentary committee, also reviews all ordered surveillance/intercept
programs which are considered as potential violations of Article Ten. Like the FSIA
court in the U.S., however, the German people remain unaware of limitations under
Article Ten imposed by the government surveillance (and ratified by the committee
and GS-10 commission), as such programs are secret.
The new law also authorized Germany to deploy the usage of armed air marshals
(officers from Federal Border Guard/Police) on German planes, and stiffened
security checks at airports. The law also broadened the power of the Border Police
to question suspects without suspicion. Prior to this legislation, the Border Police
could only question individuals within a certain distance from the border, and such
questioning must have been related to the Border Police mission of protecting
the borders. However, the new law broadened the Border Police authority to now
question individuals—without the need to justify the questions as being related to
the protection of the border. Thus, “any person can be subjected to an identify check
by the police of the Laender or the Federal Border Guard while traveling in trains or
through airports and train stations and, in some instances, also within a 30-kilometer
radius of the federal borders” (Lepsius, 2002). Further, individuals must produce
106 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
identification when requested by Border Police. This is lamented as an erosion of
civil liberties by at least one German scholar, who commented that “such police
controls target the individual who has neither aroused prior suspicion by his or her
behavior, nor caused any danger” (Lepsius, 2002).
Additionally, while Germans have long been required to carry national identity
cards (“Tricky Business,” 2001), the identification of non-Germans will include new
security features such as fingerprints and face recognition data. Thus, unlike the
United States which still lacks a national identity card for its citizens, Germany has
long allowed for the collection of personal and biometric data (House of Lords &
House of Commons Joint Committee on Human Rights, 2003-2004). The use of
biometric information may be extended to German identification cards as well in the
future; however, the perimeters of the amount of data on the cards (and protections in
the storage/use of the data by the government) are still being debated and discussed.
Along with the increased data on the papers of foreigners, the amended Asylum
Procedure Act now stipulates that those seeking asylum may be asked to render
a voice recording (in order to ascertain region of origin/dialect). Under this law,
asylum seekers will have their statements (voice recordings) stored for up to a decade
after seeking asylum. The law also strengthened the federal prosecutor’s office, by
creating several new divisions within the office charged with focusing on issues
pertaining to terrorism. The amendments also make clear that Germany has the legal
authority and power to ban any group which promotes violence and intolerance,
including Islamic fundamentalist groups. Like the original version of the U.S. Patriot
Act, some of the controversial measures listed above have a sunset clause of five
years, and must be affirmatively renewed by the Parliament.
Finally, Germany has some unique provisions dealing with the protection of
witnesses and the disclosure of sensitive materials in court. As discussed in the
chapter on the U.K. and the chapter on Spain, countries are experimenting with
measures that will cause accomplices to provide evidence to the police in order to
capture major terrorists, break up terrorist cells, and thwart potential terrorist attacks.
Spain, for example, has amended its Penal Code to allow for reduced sentences for
those who have renounced terrorism, and provide useful material information to law
enforcement. In Germany, informants can be given new identities and yet still give
testimony in court. The procedure laws have been changed to allow for courts to
accept the physical absence of these witnesses from court during a trial, and accept
in place the testimony of the police officers who questioned the witnesses, along
with the written statements of the witness (with names redacted). Courts will not
inquire into the identity of the witness. Further, if additional information is sought
by the court, written questions can be submitted. In reviewing the constitutionality
of this process, the Federal Constitutional Court gave its approval to the practice, so
long as the decision about the non-availability of a witness be made at the “highest
level” of the government, and that full reasons are provided to the court by the
government for the non-availability (House of Lords & House of Commons Joint
Committee on Human Rights, 2003-2004). This practice allows the government
 Germany 107
to convince otherwise reluctant individuals to testify without fear of reprisal from
terrorist cells.
Thus, in total, Germany has a variety of terrorism related criminal offenses,
many of which have been in existence since the mid-1970s, and some which were
amended after 9/11, including the following: commission of acts of terrorism; joining
or supporting terrorist groups; and aiding and abetting another in the commission of
a terrorist act. Furthermore, Germany has amended its Penal Codes to allow for
the motivation of terrorism as an aggravating factor in sentencing. Thus, if one
is prosecuted for an underlying criminal offense in the commission of a terrorist
action, in deciding the appropriate sentence, German courts may take into account
the terrorist motivations of the perpetrators in committing the act. In the words of
Alvaro Gil-Robles, a human rights commissioner, “we are fiddling with rights that
only a few years ago seemed untouchable” (Bennhold, 2006).

Select German Cases Since 9/11

Different countries have adopted varying notions of judicial review. While countries
from the Civil (Romano-Germanic) Law tradition normally lack courts playing a
prominent role in policy or in any exercise of judicial review, post-World War II
Germany is an exception to this general rule. In part due to the abuses by the Nazi
regime, and in part based upon U.S. influences on the West German government
following World War II, the Federal Constitutional Court was created with the notion
that a very strong federal court was needed to help preserve the free democratic
order in Germany. Thus, Germany’s Federal Constitutional Court is viewed as
wielding/exercising the power of judicial review in a very powerful manner. Like
the U.S. Supreme Court, the German Constitutional Court is said to be the final
arbiter of the constitution and can invalidate laws which are in contravention of the
constitutional order. Unlike the U.S. Supreme Court, however, which first received
the power of judicial review through judicial fiat in Marbury v. Madison (1803),
and only sporadically exercised judicial review the first 100 years in the Court’s
existence, the German Federal Constitutional Court was expressly vested with
the power in the Federal Constitutional Court Act in 1951. Furthermore, almost
immediately thereafter, the German Constitutional Court asserted itself as a co-equal
branch of government and the branch with the power to act as the final arbiter of the
constitution. Perhaps as a illustration as to how rigorous judicial review will be at the
German Federal Constitutional Court on issues of terrorism, the July 2005 decision
which invalidated a European extradition warrant is an excellent example. The case
involved a Spanish attempt to extradite a German-Syrian dual national, Mamoun
Darkazanli, who was suspected of providing financial and logistical support to the
al-Qaeda terrorist network. Darkazanli was one of the forty-one suspects indicted by
Spanish Judge Baltasar Garzon (for further discussion, see Chapter Four on Spain).
The Federal Constitutional Court invalidated the EU arrest/extradition warrant (as
implemented by Germany) as the Court held that it violated Germany’s Basic Law.
108 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Specifically, the German Constitution specifies that citizens of Germany cannot be
extradited to another country for trial. Thus, as a citizen with dual nationality, the
Federal Constitutional Court held that it could not legally honor the extradition/arrest
warrant—which was put into place largely “to allow the swift cross-border handover
of terror suspects” (“German Court Rules European Warrant Invalid,” 2005). The
case illustrates that EU wide anti-terrorism measures will be scrutinized by the
national courts of the various countries. Also, in 2005, the German court declared
the use of military force in Iraq by the executive to a violation of the anti-aggression
provisions in the German constitution, also illustrating the level of scrutiny given to
government policies by the court.
This court sits apart from the ordinary court system in Germany and the court is
charged not with serving as the court as last resort for specific legal disputes, but rather
is a co-equal branch of government charged with interpreting the constitution. A case
can arrive at the Court in a variety of different manners. Interlocutory appeals from a
lower court to this Constitutional Court are one possibility, whereby one of the lower
courts in the ordinary court system sends the case to the German Constitutional Court
in order to resolve the constitutionality of a statute or law which may be applicable in
the case handled by the lower court. Another way in which cases reach the high court
is through the court’s power to issue abstract, advisory rulings. At least one-third of
the members of the Bundestag or any of the federal or state governments can request
an advisory ruling regarding the constitutionality of a certain law. The court can also
be consulted during the legislative process in ensuring that proposed legislation does
not overstep its constitutional limitations. No actual case or controversy is needed
as is the case in the United States. The third way involves citizen complaints filed
directly with the court, and these individually filed complaints account for a great
many of the cases ultimately decided by the Federal Constitutional Court. Basically,
a citizen may petition the court if he or she believes that a law violates their basic
constitutional rights. While the individual must exhaust other remedies before filing
with the court, this route is utilized frequently, as illustrated by the fact that the court
received 117,528 individual citizen complaints between the years 1951 and 1998
(Boyne, 2003).
Thus, one can petition the Constitutional Court to review the constitutionality
of recent anti-terrorism laws, without actually being subject to a prosecution. In the
United States, if one wishes to challenge the constitutionality of the Patriot Act at the
United States Supreme Court, for example, one must have standing and there must
be a real live case and controversy. This practically means that the individual has
been prosecuted under the laws, and then challenges the laws during the prosecution.
Even at that point, in the United States, the case may take several years to percolate
up to the U.S. Supreme Court, and the litigant would have to raise the issue in at
least two different federal courts (i.e., in front of the U.S. District Court at time of
trial and in front of a United States Court of Appeals on appeal) before hoping to
have the U.S. Supreme Court weigh in on the controversy. The German approach
allows for a quicker access to the court, and has the opportunity to declare laws to
 Germany 109
be unconstitutional much earlier in the process than is the case for the United States
Supreme Court.
Perhaps the most of the notorious terrorism trials around the world since 9/11
deals with Germany’s attempted prosecution of Mounir El Motassadeq, who was
the first person charged with criminal violations for what occurred in Washington
and New York City on September 11, 2001. Motassadeq is believed by German and
American law enforcement to be a part of the notorious Hamburg cell, of which
several participants (namely, Mohamed Atta, the ringleader in the United States of
all the hijackers on 9/11, as well as Marwan Al-Shehhi, another Hamburg resident
who was one of the hijackers onboard the second plane that crashed into the World
Trade Center) traveled to the United States and were direct perpetrators in the
crimes that were committed on 9/11. While two of his suitemates traveled to the
United States to commit criminal terrorist acts on 9/11, Motassadeq stayed behind
to allegedly to manage terrorist funds which were wired to the terrorists in America.
Specifically, between May and November 2000, German authorities speculated that
Motassadeq wired large amounts of money to Al-Shehhi’s account in the United
States. According to authorities, this money was then used for such expenses as
flight training/lessons and living expenses. Motassadeq also had a power of attorney
from Al-Shehhi, authorizing Motassadeq to, among other things, transfer money.
Funds were transferred from Motassadeq (under the power of attorney) to Ramzi
bin al-Shibh, who law enforcement experts in the United States believe to be one
of the key masterminds behind the 9/11 plot. Bin al-Shibh is currently in United
States custody in a secret location after being apprehended in Pakistan (Cleaver,
2005). Motassadeq also had admitted to attending an al-Qaeda training camp in
Afghanistan (Cleaver, 2005).
After weeks of surveillance, in November 2001, Motassadeq was arrested by
German authorities, and taken into custody. On February 19, 2003, Motassadeq was
convicted by a state court in Hamburg for being an accessory to the murder of over
3,000 individuals, and was the first person to be found guilty for playing a role in the
9/11 terrorist events. He was also found guilty of the lesser offense of belonging to
a terrorist organization. He was sentenced to a fifteen year sentence for this offense.
However, several months later, on March 4, 2004, Motassadeq was successful in
appealing his conviction on the grounds that he did not receive a fair trial as there
was not sufficient evidence to convict him, primarily because the United States
refused to allow a key witness (Bin al-Shibh) it had in custody to testify in the case—
despite requests from Germany authorities and the judge. The appellate judge for
the appeals court in Karlsruhe commented that “the interests of the state to maintain
secrecy cannot result in a disadvantage for the defendant” (Boston, 2004).
Motassadeq was then bound over for re-trial, which occurred in August 2005.
At this re-trial, the United States did provide German authorities with a redacted
statement from bin al-Shibh. However, at the end of the trial, the judge acquitted
Motassadeq on the charge of being an accomplice to 3,000 counts of homicide, as
the judge would not accept the statement of bin al-Shibh as evidence, and the judge
ruled that there was not sufficient evidence to convict Motassadeq with involvement
110 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
in the attacks on America on 9/11. Specifically, the presiding judge ruled that the
statement was not sufficient evidence to warrant a conviction as 1) sections of the
statement were redacted (presumably to protect classified information; 2) the judges
could not examine the credibility of the witness in person; and 3) there was a concern
that the statements from this material witness were made during interrogation and
possibly as the result of torture or other coercive measures (Cleaver, 2005). At his
retrial in August 2005, Motassadeq was convicted only for his membership in a
terrorist organization, and he received a seven year sentence for his conviction on
this offense. Motassadeq again appealed the conviction and the case took another
tortuous turn in February 2006. Specifically, on February 7, 2006, the German
Constitutional Court ordered Motassadeq to be released by authorities pending the
resolution of his appeal. The Court ruled that “the lower court had been wrong to put
him in jail, because he posed no greater risk of fleeing than during his first appeal. As
a condition of his release, he is not allowed to leave Germany and must turn in his
passport to authorities.” The Court also added that Motassadeq “could still serve his
sentence if an appeals court upholds the lower court’s conviction” (The Frontrunner,
2006). In July 2005, another judge acquitted Abdelghani Mzoudi, another alleged
Hamburg cell conspirator and acquaintance of the members of the Hamburg cell,
of the same charges that were levied against Motassadeq (Boston, 2004). Also, in a
separate case, the FCC—utilizing the power of judicial review—“overturned parts
of a law giving police powers to conduct electronic surveillance of private homes”
(Boston, 2004). In another case, in October 2005, four defendants were convicted in
a Düsseldorf court on charges that they held memberships in a terrorist organization,
as well as lesser charges of forgery and violations of weapons laws. The leader of
the terrorist organization was Abu Musab al-Zarqawi, one of the leaders in al-Qaeda,
and the defendants were found guilty of assisting the organization in planning attacks
against Jews in Berlin and Düsseldorf. As a result of the conviction, the defendants
received sentences ranging from five to eight years.
In another case alluded to earlier, a German-Syrian dual national, Mamoun
Darkazanli, was indicted by a Spanish judge for Darkazanli’s alleged complicity
with the 9/11 hijackers and was arrested by German authorities (at the request
of Spain) after the indictment in October 2004. Among other things, Darkazanli
allegedly shared an apartment in Hamburg with Mohamed Atta and was videotaped
at a wedding with two of the three 9/11 suicide/terrorist pilots. Spain requested
extradition of Darkazanli, and German sought to extradite utilizing the then-new
EU arrest warrant, and Darkazanli sought to quash the extradition request/EU arrest
warrant by judicial review. In ultimately invalidating the EU warrant, Germany’s
high court held that the EU warrant violated Germany’s Constitution and the Basic
Rights delineated in the Constitution. The German Constitution prohibits the
extradition of German citizens for trial abroad (Turkish Daily News, 2005). After
the ruling, while the German Justice Minister vowed to get the provision of German
law reinstated, Darkazanli was released, and according to the U.S. State Department,
German authorities have yet to re-arrest or indict Darkazanli under German law
(State Department, 2006).
 Germany 111
While Germany has had no problems “getting tough” on radical groups and
individuals since 2001 in the name of anti-terrorism and homeland security, the
foregoing cases also illustrate how seriously the German judiciary views its task
of holding the government’s proverbial “feet to the fire.” The FCC has illustrated,
multiple times since 2001, that it will fully execute its powers of judicial review
in ensuring that all proposed anti-terrorism measures passes constitutional law and
does not run afoul of the Rechsstaat.
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 Chapter Four

Spain

Just as the U.K. and Russia have had to deal with domestic terrorism stemming
from Northern Ireland and Chechnya, respectively, so to have Spain had to deal
with the specter of homegrown terrorism in dealing with terrorism by Basque and
Cataluna separatists. The militant Basque separatist group, known as ETA (an
acronym which stands for “Basque Homeland and Liberty” in the Basque language),
has been responsible for the deaths of over 800 individuals in Spain during roughly
a forty year campaign for regional independence in Spain (McLean, 2006). The
ETA, founded in 1959, has sought the formation of a new Basque state in an area
encompassing part of northern Spain and part of southern France. From the first
death at the hands of ETA members in 1968 to the last fatal attack by ETA in 2003,
the group has conducted repeated attacks on an array of different targets, to include
the attempted assassination of political leaders, bombings of government buildings,
car bombs, and bombing attacks in parks and shopping districts/malls. While ETA’s
last fatal attack was in May 2003, since that point, ETA has continued to execute
bombing attacks, but only in a way which would not lead to fatalities. The bombings
from 2003-2006 would usually be proceeded by a phone call or warning to avoid
fatalities. Then, as will be discussed below, in March 2006, the ETA made the
unparalleled move to denounce violence and agree to seek changes only through
politics and the democratic process.
Of course, in addition to having to deal with the ETA in recent years, Spain
suffered a demoralizing attack by al-Qaeda operatives on March 11, 2004,
in which Madrid commuter train system was targeted with a series of timed
bombings. This incident, causing the deaths of approximately 191 individuals,
and injuring thousands more, has been the single bloodiest terror attack on
European soil since the bombing of Pan Am flight 103 over Lockerbie, Scotland,
in 1989. In the minds of many Spanish citizens, the attacks in March 2004 rivaled
the attacks on the U.S. on September 11, and thus the incident is often referred to
Spain’s “3/11,” mirroring the U.S. shorthand referral of the events on September
11, 2001, as 9/11.

Constitutional Issues

Perhaps the most interesting aspect of the Spanish Constitution relating to terrorism
is Article 55, which is subtitled “Emergency, Siege, Terrorism.” Article 55 of the
constitution provides for a process whereby fundamental rights and civil liberties
114 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
may be suspended during a state of emergency, and also in terrorism cases. Article
55 of the Spanish Constitution reads as follows:

Article 55 [Emergency, Siege, Terrorism]

(1) The rights recognized in Articles 17, 18(2) and (3), 19, 20(1)(a) and (d) and (5),
21, 28(2), and Article 37(2) may be suspended when a state of emergency or siege
is declared under the terms provided in the Constitution. Article 17(3) is exempted
from that which was established previously in the event of the declaration of a state
of emergency.
(2) An organic law may determine the manner and the cases in which, in an individual
manner and with the necessary judicial intervention and adequate parliamentary
control, the rights recognized in Article 17(2) and 18(2) and (3) may be suspended
for certain persons with respect to investigations having to do with the activities of
armed bands or terrorist elements. The unwarranted or abusive utilization of the
powers recognized in said organic law will result in criminal responsibility as a
violation of the rights and liberties recognized by the laws.

A few words are in order in regards to Article 55. First, paragraph one deal
with a declared state of emergency or siege. As such, a terrorist attack would
not automatically trigger paragraph one of Article 55, unless the attack were of
such a magnitude that a state of emergency was subsequently declared. Once a
state of emergency is declared, virtually all civil liberties may be suspended,
including the rights of personal liberty (Article 17), rights to be secure in home
from searches and intrusions (Article 18(2)), right of protection of personal
information (Article 18(3)), freedom of movement (Article 19), free expression
(Article 20(1)(a) and (d)), right of assembly (Article 21), as well as certain
Union and organized labor rights, including the right to strike (Articles 28(2)
and 37(2)).
Under paragraph two of Article 55, the government is empowered to pass
reasonable laws—subject to judicial review and parliamentary control—
suspending and/or restricting an individual’s right of personal liberty (Article
17), right to be secure in the home and free from searches (Article 18(2)), and
the protection of individual information (Article 18(3)). Paragraph two basically
authorizes the government to pass surveillance laws that allow intrusion
into these foregoing rights in cases involving “certain persons with respect
to investigations having to do with the activities of armed bands or terrorist
elements.” However, Article 55 ends with an admonition to potentially over-
zealous law enforcement officers who wish to take advantage of the powers in
the provision to the determent of common sense and deferral to the rule of law.
Namely, Article 55(2) warns that “the unwarranted or abusive utilization of the
powers recognized…will result in criminal responsibility as a violation of the
rights and liberties recognized by the laws.”
 Spain 115
Police/Law Enforcement Structure

Spain’s law enforcement regime is characterized as “multiple uncoordinated” in its

structure, which is somewhat ironic given that the various police forces all operate
under the auspices of the national government. Spain’s nationally centralized, yet
uncoordinated policing structure, illustrates drastically the problems of structuring
law enforcement functions in such a fashion. In Spain, there are three major
competing entities, namely the Guardia Civil (Civil Guard), the Cuerpo Nacional de
Policia (National Police Corps), and the Policia Municipal (Municipal Police). The
Civil Guard is the oldest police force in Spain, traces its history back to 1844, and is
considered by many to be part of Spain’s army. Its chief jurisdictional responsibilities
today include “policing the rural parts of Spain, patrolling the highways between
cities, controlling firearms and explosives, guarding certain installations, and
protecting such areas as the coast, frontiers, ports, and airports” (Reichel, 1999).
There seems to be a “fear among liberals that increased crime and terrorism may
inspire the rise of neo-authoritarianism in the guard.” The intermingling of domestic
policing by an arm of the Army in Spain (by virtue of the Civil Guard) is an aspect
of law enforcement which would not be permissible in the United States under the
provisions of its Posse Comitatus Law.
The second major law enforcement entity in Spain is the National Police Corps
(Cuerpo Nacional de Policia), which is responsible for policing metropolitan urban
areas with populations exceeding 20,000 citizens. Chief amongst the National Police
Corps duties are detective and investigatory work (formerly done by detectives of
the Superior Police Corp., which was merged with the Armed and Traffic Police
in 1986 to form the National Police Corp.). The National Police Corps also has
responsibility for private security forces and enforcing certain vice crimes, such as
drug laws and gambling. The Armed and Traffic Police force, which was merged
with the Superior Police in 1986, was under military control and had the reputation
of acting with a “highly political purpose and was accused of repressive Gestapo-like
tactics” (Reichel, 1999). The final of the third law enforcement entities in Spain are
the Policia Municipal (Municipal Police), which are the local municipal police force.
The composition and size varies from city to city; however, uniformity is partially
achieved by a 1986 law which governs not only the Municipal Police, but also the
National Police Corps and the Civil Guard. The 1986 law limits the Municipal Police
to the policing of largely minor offenses, such as guarding buildings and conducting
traffic control, although members of this organization are the most visible in
metropolitan areas. The 1986 law also tries to limit conflict and jurisdictional conflict
between these three different agencies, although many scholars have commented
that “several areas of conflict among the three law enforcement units” (Reichel,
1999) still exist today.
In terms of international law enforcement and cooperation, Spain (and
Portugal) joined the Schengen Group in 1991—which helps in the cross-flow of
law enforcement intelligence and information. Further, Spain spearheaded the effort
to ultimately gain approval in late 2001 for a uniform arrest and detention order
116 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
which would be evenly applied throughout the EU. This warrant was referenced
in the foregoing chapter on Germany, as the application of this EU arrest warrant
was invalidated by the German Federal Constitutional Court, at least as it applied
within Germany. In April 2005, Spain joined Belgium, Germany and France, in a
law-enforcement/cooperation agreement which links the criminal record registries
in each of the countries in order to accelerate background checks on individuals
suspected of terrorist related activities.
Since 9/11, Spain (with France) was one of the first countries within the twenty-
five members of the EU to create a “multi-national police investigation teams”
initially allowed under an EU agreement put forth in 2002. The result of the creation
of these “multi-national police investigation teams” is that Spanish and French law
enforcement can work together (as a state-federal task force does in the United
States) in the investigation of acts of terrorism, whether ETA based or based upon
a domestic insurgency threat in France, or threats of Islamic based extremism and
terrorism from abroad. In terms of general structure, it should also be noted that
Spain belongs to all twelve international treaties (and protocols) pertaining to
terrorism. Spain has also lobbied strongly for inclusion as a standing member of the
G-8 Counterterrorism Action Group—largely in light of its strong assistance and
support rendered to the United States (and other less developed countries as well)
since 9/11.

Legislative Responses in Spain after 9/11

Mariano Roy, Spain’s Interior Minister commented that “in these 50 days, we have
advanced more in the struggle against terrorism than in the last decade” (Hoge,
2001). Indeed, it has been argued that, like Russia, Spain used “the attacks of
September 11, 2001, as an opportunity to crack down on anti-government factions”
and “as a result, Spain has increased its counter-terrorism efforts against the ETA”
and “has agreed to stand shoulder to shoulder with the United States in its fight
against terrorism” (Wu, 2004). Some, including the Special Rapporteur on Torture
for the UN Commission on Human Rights, have accused the Spanish government
of fostering a climate (through its revised domestic laws) in which the possibility of
torture and abuse during incommunicado detentions is possible. In Spain’s official
response/rebuttal to a report by the Special Rapporteur, Spain denied all criticisms
and stated that “the fight against terrorism in Spain, as a democracy governed by
the rule of law, takes place within a legal and constitutional framework and with
absolute respect of the rights and freedoms of citizens” (United Nations Commission
on Human Rights, 2004).
However, as indicated above, Spain has been actively engaged in the “war
on terror” since 2001 and revised many of its laws in that respect. For example,
within a year of 9/11, Spain proposed legislation that would allow authorities to
ban any political party that encouraged “hatred, violence, and social confrontation,”
or challenged the legitimacy of democratic institutions (similar to Germany’s
 Spain 117
constitutional approach to this issue), or promoted “a culture of civil confrontation.”
The law was clearly meant to target Batasuna, which is the political party for the
ETA, and in 2002, the government banned the Batasuna as a party, and prohibited
membership in the organization. As a result of the ban, financial accounts connected
to the ETA were frozen. In March 2003, the Spanish Supreme Court upheld the
ban of Batasuna as legal. The ban has also effectively allowed for the arrest and
incarceration of those who will not disavow their allegiances to the ETA. In 2003,
Spanish law enforcement arrested approximately 126 individuals for membership in,
or association with, the ETA. As of 2003, there were over 500 ETA members in jail
in Spain, and approximately 100 in France (U.S. Embassy in Spain, 2003). Also, in
February 2003, the newspaper Euskaldunon Egunkaria—the only newspaper solely
in the Basque language, was ordered closed by the Audiencia Nacional (the special
court in charge of terrorism cases), and ten people at the paper were arrested (Human
Rights Watch, 2004). The paper was utilized for the funding and money laundering of
the ETA. In justifying the closure order, the Spanish government has stated that such
measures are mandatory in light of UN Security Council Resolution 1373. These
efforts by Spanish authorities since 2003 have largely dismantled the organization
and contributed to the overall evisceration of the organization’s abilities to conduct
operations.
Excluding the al-Qaeda attacks in March 2003, many of Spain’s terrorist
related attacks have come at the hands of ETA, and the ETA historically was not an
impotent organization. However, in a move that surprised many, on March 22, 2006,
the leadership of ETA announced a cease fire after four decades of violence. The
decision to denounce violence was likely connected to the train bombings in Madrid
on March 11, 2004. While these attacks did result in a change of government at the
next election, and a pullout of Spanish troops from military actions in Iraq, the attacks
were vehemently condemned and most in Spain (and abroad) expressed extreme
distaste and outrage of such attacks. Thus, many groups, like the ETA in Spain, and
the IRA in the U.K., for example, have distanced themselves with terrorist actions,
as there has been such revulsion among the citizenry for such practices since 2001.
While dealing with the ETA cease-fire announcement with caution, the Spanish
government has announced plans to open negotiations with ETA in May 2006 and will
continue these negotiations so long as ETA continued in its permanent renunciation
of terrorism (McLean, 2006). Thus, the Spanish approach to dealing with recent
incidents of terrorism has been characterized by a willingness to open up avenues
of discourse with terrorist organizations in the hopes of avoiding violence. Indeed,
in a statement released on March 23, 2006, the ETA stated that it was commented
to “dialogue, negotiation and agreement,” but that Spain should also “remove the
obstacles to the democratic process by abandoning repression and showing that it
has the will to achieve a negotiated settlement” (McLean, 2006). Spain in turn has
suggested concessions are possible, but the ETA will have continue and its pledge
of denouncing violence and, perhaps, turn over its weapons. This negotiation
approach is notably different from the approach of the United States, a country that
118 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
has repeated asserted since the Reagan administration (1980-1988) that it does not
negotiate with terrorists.
Spain’s overall alliance with the United States after 9/11 extended to cooperation
in the ubiquitous “war on terror,” including providing 1,300 Spanish troops for
deployment to Iraq, allowing the use of Spanish military bases (at Moron and Rota)
for use of forces participating in military operations in Afghanistan, and providing
other financial and logistical support. In providing this support, the State Department
announced that “Spain is a firm ally in the global war against terrorism” (U.S.
Embassy in Spain, 2003). However, this firm support and participation in the “war
on terror” in Iraq was a chief reason behind the Madrid train bombings on March
11, 2004. While it was first believed that perhaps the ETA might be behind the
bombings at the three Madrid train stations that killed 192 and injured 1,400, it later
became apparent that the al-Qaeda terrorist network was behind the attack—in large
part because of Spain’s early and strong support of the United States in its military
operations in Iraq.
Given that Spain has had a history of domestic terrorism going back decades,
it already had enacted terrorism related criminal offenses prior to 9/11. However,
Spain did extend the definitions and scope of terrorism related criminal offenses
after 9/11. Interestingly, Spain has not augmented its laws further since March
2004 (date of the Madrid train bombing), and has not sought additional emergency
legislation beyond its amendments from 2001-2004. Thus, Spain can be considered
unique from the United States, the United Kingdom, Russia, and Germany, in that
new and more expansive powers for law enforcement were not automatically sought/
requested by virtue of a very deadly terrorist attack taking place on its soil. All the
other countries noted above immediately utilized the event as justification for a new
round of stricter anti-terrorism laws, and promulgated “proactive and aggressive”
laws, as opposed to Spain’s “largely passive approach” after March 2004 (Guiora
2005). One scholar has posited that Spain’s lack of new legislation after the March
2004 attacks legitimately illustrates the following: “1) The existing legislation
was felt to be sufficient; 2) Spain did not want to be perceived as pursuing Islamic
terrorists; 3) Spanish authorities thought that the criminal model is appropriate for
countering terrorism and therefore no special legislation was needed” (Guiora 2005).
It should also be noted that Spain’s laws have been criticized by the United Nations
Committee Against Torture in 2002, the UN Special Rapporteur on Torture in 2004,
as well as several human rights groups, including Human Rights Watch. Thus, the
pressure from these groups regarding the alleged pre-existing severity of Spain’s
anti-terrorism laws might legitimately be a factor that contributed to the decision not
to augment governmental powers further after March 2004.
Thus, in terms of Spain’s anti-terrorism legislation, many of the provisions
were passed well before 2001 to deal with the domestic terrorism presented by ETA
operations in Spain. However, after 9/11, Spain did amend/revise its laws in several
key respects. Specifically, Article 571 of the Spanish Criminal Code has been revised
to define terrorism as “belonging, acting in the service of or collaborating with armed
groups, organizations or groups whose objective is to subvert the constitutional
 Spain 119
order or seriously alter public peace.” Thus, like the United States and the Patriot
Act’s criminalization of “material support” to terrorists, Spain has likewise defined
terrorism very broadly, to include more attenuated and indirect forms of support
for others who commit terrorist acts. Spain also has extended the use of intercept
evidence and the search powers of police after 9/11 (House of Lords and House of
Commons Joint Committee on Human Rights, 2003-2004). In terms of its terrorism
related criminal offenses, the Spanish Penal Code was amended as of November 23,
1995, through its Organic Law 10/1995, to make clear that the following offenses
are criminal: first, Article 576 specifies that it is a criminal offense to collaborate
or affiliate with armed groups or terrorist organizations (including the recruitment
of new members); and second, Article 573 creates a new offence for a criminal
offense involving the storing or possessing of weapons or explosives for potential
or planned use by an armed group or terrorist organization. The Penal Code has also
been amended to make the punishment for terrorist related offenses greater than
criminal offenses that lack the terrorist motivation. For example, the Penal Code
specifies that normal domestic homicide/murder involves a potential sentence of
fifteen to twenty years, while homicide committed as part of a terrorist event or
action involves a sentence of twenty to thirty years (Guiora, 2005). It is interesting
to note that Spain does not have a separate “special terrorism law” per se, but rather
“terrorists are brought to trial based upon Spain’s Criminal Code” and the procedures
for ordinary defendants, albeit with a few notable exceptions pertaining to detention
and incommunicado detention as delineated below (Guiora 2005).
During the course of the investigation, recent amendments to the law has given
law enforcement the power to detain suspected terrorists wherever they may be
hiding or taking refugee (home, business, house of another, et cetera), and the
police may search and seize any items found at the place of hiding which might be
reasonably linked or connected to the suspected terrorist activities. Furthermore,
during the investigation, the law also allows the surveillance and/or interception of
communications. In order for law enforcement to intercept wire communications, it
must have been authorized by the Ministry of the Interior, and then the authorization
must be transmitted to writing and submitted to a judge, who has the authority to
either revoke or confirm the interception within seventy-two hours, and provide a
rationale for the decision to revoke or confirm.
It has been said that the law enforcement “tentacles of power reach” widely, and
“failing to produce an identify card if you are checked in the street can result in a
visit to the local police station, especially if you are foreign.” Like Germany, Spain
requires all citizens to have national identification cards. Further, “investigating
magistrates, working with police, have far-reaching powers to tap telephones, order
searches, look into bank accounts…and the Spanish secret service has monitored
telephone calls by politicians, and even by the king” (“Tricky Business,” 2001).
Another unique provision Spain has added after 9/11 has to do with internet activity.
On June 27, 2002, Spain passed the Law on Information Society Services and
Electronic Commerce, which requires that all website operators/owners register
with the government if they derive any income from the operation of the website.
120 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Furthermore, under Article Twelve of said law, all communication data (internet, e-
mail, et cetera) shall be collected and retained by the government, so that it can be
utilized by law enforcement in the course of a criminal investigation.
In terms of detention, Spain permits a longer period of detention for suspects
accused of terrorist related offenses, as well as a longer period in detention without
access to legal counsel, than those charged with non-terrorism related offenses
(House of Lords & House of Commons Joint Committee on Human Rights, 2003-
2004). For instance, the Spanish Criminal Prosecution Act (Article 520 bis) specifies
that that the police may extend the detention of terrorist suspects an extra forty-eight
hours (two days) beyond the initial seventy two hours (three days), provided that
the extension is authorized by a judge. Thus, under Article 520 bis, the government
may hold a terror suspect a total of five days without trial or charges. Article 520
specifies that, by court order, the suspect may be kept incommunicado and without
legal counsel during the detention and “most suspected terrorist detainees are held
incommunicado for at least the first forty-eight hours in custody” (Human Rights
Watch, 2005). It is important to note incommunicado detention must be authorized
by a court, and ordered by a judicial decree in which the grounds for the methods are
stated. However, according to the Spanish government, in 2002-2003, seventy-five
percent of all incommunicado detentions lasted seventy two hours, at which time
the detainees were sent to a judge and the incommunicado restraints were lifted
(Spanish Reply to UN Commission on Human Rights, 2005). Again, according to
Spain, “in the remaining 25% of cases, incommunicado detention was extended
for a further 48 hours (totaling 5 days), after which the detainees went to court
and the incommunicado status was lifted” (Spanish Reply to UN Commission
on Human Rights, 2005). Spain alleges that in the one year time frame of 2002-
2003, only one incommunicado detention went beyond the five day period. During
the incommunicado detention, the detainee’s conditions are monitored by a court
appointed lawyer, a government doctor, and at least one judge. The Spanish
government, in its official report submitted to the UN, has justified its practice of
incommunicado detentions as follows:

The incommunicado regime is only applied to a detainee or prisoner for terrorist offences or
organized crime. Its aim is to safeguard the reserve and confidentiality of an investigation.
That is the only reason why the State temporarily restricts the right to communicate with
the outside world, whilst constantly safeguarding the detainee’s right to legal and medical
assistance and always under permanent supervision by a judge (Spanish Reply to UN
Commission on Human Rights, 2005).

Furthermore, Spanish law does allow, in extraordinarily unique cases, to have the
proceedings conducted in secret (causa secreta), as was apparently done in several
cases involving al-Qaeda operatives (Human Rights Watch, 2005). In order to have
the proceedings declared secret, an investigating magistrate from the Audienca
Nacional must certify the case as needing secrecy, in which case a secrecy order will
be in place for thirty days, which can be renewable consecutively for the entire time
of pre-trial detention/confinement. In any event, individuals accused of terrorism
 Spain 121
are tried in a special court, the Audienca Nacional, which has specific jurisdiction to
try “crimes committed by persons belonging to armed groups or related to terrorist
or rebel elements when the commission of the crime contributes to its activity, and
by those who in some way cooperate or collaborate in the acts of these groups or
individuals”(Human Rights Watch 2005).
It has also been reported that Spain has begun to revise its plea bargaining
approach in terrorism cases, whereby sentences may be decently discounted for those
who materially assist the authorities (Carlile, 2004). That is, Spain has amended its
laws to allow for the statutory assurance of a lower sentence for those who have
committed terrorist related offenses, but who have renounced terrorism and who
cooperate with law enforcement in thwarting other terrorist actions or bringing others
to justice (House of Lords & House of Commons Joint Committee on Human Rights,
2003-2004). This is clearly specified in the Spanish Penal Code at Article 579. This
approach has been successful in the prosecution of drug cases, and in prosecuting the
Mafiosi in Italy (the Italian “pentiti” approach). It has also been advocated by Lord
Carlile for terrorism related suspects in the U.K. Specifically, Spain have revised its
laws to impose a higher sentence for the perpetrators of terrorist related offenses,
as contrasted with the equivalent criminal offenses that otherwise lack the terrorist
motivation ((House of Lords & House of Commons Joint Committee on Human
Rights, 2003-2004).

Select Cases/Judicial Issues

In January 2003, Spanish Judge Baltasar Garzon indicted forty-one suspects on

grounds of having membership in a terrorist organization and regarding the operation
and support of al-Qaeda. The indictment includes one for Osama Bin Laden. Many
of the indictments allege that the individuals played a role in supporting the events
on 9/11 in the United States. While some of the individuals subject to indictment
have not yet been apprehended, many of the individuals are in custody in Spain and
have been put on trial. The indictments alone involved a 692 page dossier on each
person’s alleged involvement with the events on 9/11 (Guiora 2005). For example,
one of the forty-one individuals identified as having links to and/or membership with
al-Qaeda was an al-Jazeera journalist, Tayseer Allouni. Allouni, a Spanish citizen
who was born in Syria, was charged with “collaborating with a terrorist organization”
while reporting in Afghanistan and Iraq. He was also accused of financially assisting
terrorists, by transporting funds to terrorists under the cover of being a journalist.
He was arrested in September 2003, released on grounds of health concerns, but re-
arrested in November 2004 and held in solitary confinement from November 2004
through March 2005. From March 2005 until his conviction in September 2005, he
was under house arrest. In September 2005, he was sentenced to seven years in jail
for his relationship with al-Qaeda.
In March 2006, Spain judge Juan del Olmo, of the National Court, indicted
twenty-nine people allegedly connected with the March 11, 2004, train bombings in
122 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Madrid. In the supporting 1,400 page dossier that accompanied the indictments, the
judge linked the bombings to the political goal of influencing Spain’s then-upcoming
elections and to pressure the government to withdrawal troops from Iraq. The
bombing was also very much influenced by al-Qaeda, and was not connected to the
ETA (as initially alleged by the government). However, of the twenty nine individuals
indicted, only two were charged as principals to the crime (i.e., directly involved in
carrying out the attacks), three others were charged with conspiracy to carry out
the terrorist acts (but did not directly participate in the bombings), one was charged
with being a “necessary collaborator” in the attacks, and the other twenty-three
indicted were charged as accomplices, largely for providing support or assistance
before the fact (e.g., procuring explosives or falsifying documents), or belonging to
a terrorist organization (McLean, 2006). Seven of the other individuals who were
the other individuals suspected of carrying out the train bombings committed suicide
approximately three weeks after the attacks, by detonating the apartment they were
in when it was surrounded by police. All seven individuals and one police officer
perished when the apartment bombs were detonated. The trial of the twenty-nine
indicted individuals is anticipated to commence in spring 2007.
Because the Spanish judiciary has been very active in pursuing and prosecuting
terrorists, both in terms of the original forty-one indictments for individuals who
supported al-Qaeda before or shortly after 9/11 and in terms of the indictments for
those involved in the March 11 train bombings (3/11) in Madrid, the judiciary has been
targeted for violence. For instance, on March 21, 2006, thirty-two individuals were
indicted for plotting to bomb the National Court. The National Court, as discussed
above, has been very active in anti-terrorism investigations and cases. The thirty-two
individuals indicted were mostly of Algerian descent. According to authorities, the
leader, Mohamed Achraf, had set up a terrorist cell called “Martyrs for Morocco”
while in jail in Spain from 1999-2002. Again according to authorities, Achraf’s plan
was to load a truck up with explosives, and drive the truck into the court in Madrid.
The charges against these individuals include belonging to a terrorist organization,
conspiracy to commit terrorist acts, and forgery of public documents (China Daily
Source, 2006).
In March 2003, police in Valencia arrested five individuals (four from Spain and
one from Pakistan), who were accused of belonging to a financial network which
was providing support and laundering money for al-Qaeda. The Ministry of Interior
also linked these individuals to a terrorist bombing in Yerba, Tunisia, in April 2002,
in which nineteen people perished as a result of the attack. Further, given the gravity
of charges against these individuals, in a rare order which is usually invoked only
when individuals are flight risks, two of the three individuals were remanded to jail
pending the case investigation and trial. In civil law countries generally, such pre-trial
restraint is unusual. The third individual (an Al-Jazeera television network reporter
with ties to the al-Qaeda terrorist network in Spain—named Eddin Barakat Yarkas)
was allowed release in October 2003 for health conditions. However, Yarkas was
convicted in 2005, and now is serving time for his alleged participation in running
an al-Qaeda communications ring in Spain. Also, in a recent incitement/glorification
 Spain 123
of terrorism case, Arnaldo Otegi, the leader of the Batasuna political party, received
a sentence of fifteen months imprisonment for the glorification of terrorism on April
27, 2006. The conviction and sentence was based upon a speech he gave praising an
ETA militant who was killed in 1978. Thus, as the reader can see from the foregoing
cases (which are just a sampling of the overall number of cases ongoing in Spain),
Spain remains the most active of all the countries analyzed in the pages of this book
for the prosecution of terror suspects in its domestic criminal court system.
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 Chapter Five

Russia

Very few would argue that Russia has had an easy road to travel in the fight against
terrorist actions. Hostilities between Russia and Chechnya have existed since
Bolshevik occupation of the region after the 1917 Russian Revolution. Like so many
other Soviet satellite states, it remained under the thumb of the Kremlin for much of
the twentieth century. Then, somewhat confusingly for Chechens, at the same time
as other satellite states like Lithuanian and Estonia received their independence from
Russia in the early 1990s, Chechen requests for independence were denied. Certainly,
when Boris Yeltsin denied the requests of Chechen independence, and Russian troops
and security forces engaged in bloody armed conflict in Chechnya for much of the
1990s in order to enforce this decision, a homegrown modern insurgency/insurrection
movement was spawned. This insurgency, from a predominantly Muslim region, has
attracted al-Qaeda operatives and terrorists—according to both the U.S. Department
of State and the Russian government.

Constitutional Law

With the demise and dismantling of the Soviet Union, Russia (one of the fifteen
states which comprised the Soviet Union) promulgated a new Constitution for the
Russian Federation, which was adopted on December 12, 1993, and adopted the
same day by the Russian voters. Like most constitutions, the Constitution specifies
the powers of the national government, how it operates, and delineates civil
liberties enjoyed by the citizenry and deserving of protection by the government.
While the constitution for the Soviet Union had a delineation of civil liberties as
well, most recognized that the rights of individuals within the Soviet Union were
viewed as subservient to the rights and the needs of the state. The 1993 constitution
reverses this notion, placing the protection of civil liberties at the forefront of the
constitution. Rather than attaching a Bill of Rights to the end of the Constitution,
the 1993 Russian constitution emulates the German constitution in that the rights
of the citizen are delineated at the onset. Thus, Article 2 of the constitution,
for example, explains that “Human beings and their rights and liberties are the
supreme values. The recognition, observance and protection of human and civil
rights and liberties is the obligation of the state.” In Chapter Two (section two) of
the Constitution, there is a delineation of civil rights and liberties into 47 different
categories (Terrill, 2005).
126 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
From 1917-1991, Russia was the chief example in the world of a socialist-based
legal tradition, where the law is not supreme or superior in and of itself, but rather
is viewed as an artificial, and subservient to political policy. Also, under a socialist-
based legal tradition, individual rights and protections are deemphasized, and the
focus of the state is on the promotion of the collective rights of society. During this
era, rights of individual property ownership were minimal, if not non-existence, and
the state promoted nationalized industries and the collective economy. While Russia
cast off this socialist legal tradition in 1993, and emulated a constitutional civil law
government, there still exist the remnants of the socialist legal tradition mindset. As
one scholar has stated, “the Russian legal system, as it has evolved, represents an
amalgamation of the influences of the pre-existing Soviet and Czarist legal systems
and the legal systems of various Western liberal democracies. Without doubt, the
civil law tradition constitutes the strongest influence” (Hendley 2001). That is, while
Russia has made enormous progress in transitioning to a constitutional democracy,
some old ideas and mindsets die hard. This illustrated by looking at two major
concepts, namely views pertaining to the rights of individuals and notions pertaining
to the rule of law. First, as it pertains to the individual rights of citizens, while the
constitution does delineate a bevy of such rights at the onset of the constitution,
there pervasively exists a notion that the collective needs of society still outweigh
individual protections. The notion still exists that the needs of the many outweigh
the needs of the few. This can be seen in Russia’s current attitude pertaining to
terrorism (discussed more in-depth below), as stated in Russian Federation Law
Number 130-FZ (Chapter One, Article One), wherein the Russian anti-terrorism
legislation indicates that the focus of the state shall be on “the priority of defending
the rights of persons exposed to danger as a result of terrorist actions,” as opposed to
the individual rights of those who might be adversely impacted by the government
action. The government errs to the collective benefit of the community, as again
opposed to the rights and privileges of individuals. Thus, again according to one
scholar, such a governmental focus causes “many ordinary Russians [to] continue
to regard law with cynicism, believing the law remains a tool that the state uses to
impose its will on society. Contributing to this skepticism is a recognition that the
Russian state routinely flouts the law…[which] leaves ordinary citizens unconvinced
of the legitimacy of the law” (Hendley, 2001).
Secondly, another area which illustrates the Russian struggle to cast-off old
socialist based mindsets pertains to notions as to the rule of law. Very early on in the
American experience, President John Adams (1796-1800) declared that the United
States was a government of laws, and not men. This is a decent description of the
notion of rule of law, where law is supreme to the desires of political leaders. There
has been some concern among foreign leaders that Russia has been slipping in this
area, and allowing the actions of the executive to dominant other legal aspects of the
operation of the Russian government. In the anti-terrorism context, the Duma and the
Russian Federation Council have granted the executive extremely wide latitude and
powers to basically act in any way he deems proper. In light of the very aggressive
means utilized by President Vladimir Putin in Chechnya, and the corresponding
 Russia 127
deaths of thousands of Chechen civilians, there has been much criticism about
whether Russia is slipping towards a regime not based upon the sanctity of the rule
of law, but rather, like in socialist-based legal systems generally, based upon a notion
of the law as artificial and a tool to be utilized to achieve particular political goals.
This criticism involving Russia’s arguable failure to adhere to notions of the rule
of law and the protection of individual rights has been made by several international
human rights groups, including the Human Rights Watch. After 9/11, it has become
increasing difficult in Russia to distinguish legitimate anti-terrorism measures
from those passed under the guise of fighting terrorism, but really motivated by
political concerns. For instance, in one of the first set of laws promulgated after
9/11 at the pushing of Putin was the rollback of the notion of popular elections
for the governors. Now, the governors are basically appointed by Putin. While this
law was explained by Putin as essential in Russia’s “war on terror,” many human
rights groups have lamented the law as anti-democratic and motivated by a desire to
consolidate political power.
Furthermore, assuming for purposes of argument that Russia’s actions were
motivated by minimizing the threat of terrorism, many measures utilized by Russia
have been condemned as being disproportionate and excessive by human rights
groups such as Human Rights Watch and Amnesty International. In 1999, for
instance, after a bombing in Moscow by Chechen separatist terrorists, Russia began
aerial “bombing and shelling of dozens of towns and villages to dislodge Chechen
fighters.” According to the Human Rights Watch, this “highly indiscriminate and
disproportionate” military action resulted in approximately 3,000 civilian casualties
(Zaks, 2004). Once a majority of the Chechen territory was subdued and large-
scale operations came to a close, military troops were used (and still are used) to
conduct “sweep operations” in the towns and villages in order to ferret out potential
insurrectionists. Many groups, such as Human Rights Watch, have condemned these
actions as, in practice, being synonymous with human rights abuses—and, according
to Human Rights Watch, many arbitrary detentions, beatings and torture occur as a
result of these operations (Glasser & Baker, 2001). Indeed, in February 2006, the
European Court of Human Rights handed down six cases involving Russian activities
in Chechnya. Specifically, the cases dealt with Russian aerial bombing of a convoy of
civilians near Grozny in October 1999, the “disappearance” and eventual execution
of five individuals in January 2000, and the alleged indiscriminate aerial bombing of
the city of Katyr-Yurt in February 2000. In these cases, the European Court of Human
Rights ultimately declared that “the Russian government had violated the right to
life, the prohibition of torture, the rights to an effective remedy and the peaceful
enjoyment of possessions” (Amnesty International, Russian Federation Country
Report, 2006). Also, somewhat notably, the Parliamentary Assembly of the Council
of Europe passed a resolution in June 2005 calling on Russia to “take effective
action to put an immediate end to the ongoing ‘disappearances,’ torture, arbitrary
detentions, incommunicado detention in illegal and secret detention facilities, and
[the] unlawful killings” which have occurred in the Chechnya conflict (Amnesty
International, Russian Federation Country Report, 2006).
128 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
In terms of one of the chief constitutional provisions that arguable is relevant
to Russia’s legislative measures, Articles 55 and 56 of the Constitution are of
importance. Article 55, like laws in Germany, Spain, and Israel, specifies that to
the extent governmental action is necessary to protect the fundamentals of the
constitutional system, or to protect the morality, health, or the rights and interests of
the people, or in protecting the country and/or the security of the state, civil liberties
and human rights may be restricted. Specifically, Article 55(3) of the Russian
Constitution provides that “human and civil rights and liberties may be restricted by
the federal law only to the extent required for the protection of the fundamentals of the
constitutional system, morality, health, rights and lawful interests of other persons,
for ensuring the defense of the country and the security of the state.” Of course,
anti-terrorism measures are always adopted in order to ensure “the defense of the
country and the security of the state.” Furthermore, to the extent a state of emergency
is declared “throughout the territory of the Russian Federation,” or “in individual
areas thereof,” Article 56 of the Constitution allows for “individual restrictions of
rights and liberties with identification of the extent and of their duration…in order to
ensure the safety of citizens and protection of the constitutional system.”

Russia’s Legislation on Terrorism and Homeland Security Prior to 2001

On July 25, 1998, then President Boris Yeltsin signed Russian Federal Federation
Law No. 130-FZ, which sets forth its guiding counter-terrorism principles. This
law expresses the policy and legality of subsequent governmental actions against
terrorists. The law provides in important part as follows: 1) measures to prevent
terrorism will have priority; 2) punishment for those who commit terrorist acts will
be “inevitable”; 3) the government will employ overt and covert methods of fighting
terrorism; 4) the government will employ preventive measures to avoid terrorist acts,
including the use of legal, political, socioeconomic and propaganda based measures;
5) the right of government to protect society and the rights of persons exposed to
the danger of terrorism; 6) minimal concessions to apprehended terrorists; 7) a one-
man command in the leadership of counter-terrorism security forces; and 8) minimal
disclosure of technical methods and tactics for the conduct of counter-terrorist
operations.
Under this 1998 law, terrorism is defined as participating in the organization
which conducts such acts, or being involved in some fashion with the planning or
implementation of terrorist acts. Specifically, Article 3 of the 1998 Act provides
in part as follows: “a terrorist is a person participating in the implementation of
terrorist activity in any form; a terrorist group is a group of persons united with a
view towards implementing terrorist activity; a terrorist organization is one that is
created with a view towards implementing terrorist activity, or deeming the use of
terrorism possible in its activity. An organization is deemed to be terrorist if even
one of its structural components carries out terrorist activity with the knowledge of
even one of the organization’s leading organs.” It should be noted that an individual
 Russia 129
assisting in some matter with a terrorist organization or action, no matter how minor
the action by the individual, would be guilty of terrorism—as the law specifies that
all that is required for criminality is “participation…in any form.”

Legislative Responses in Russia after 9/11

The Russian approach to terrorism was very stringent, even before 9/11, based upon
the Chechen-insurgency, and the authorities have repeated defended this approach.
In addition to the 1998 anti-terrorism law mentioned above, Presidential decrees
relating to the “war on terrorism” were also issued by President Putin in January
2001, June 2003, and February 2006. Further, as will be discussed below, Russia’s
new anti-terrorism legislation went into effect in March 2006, with amendments in
July 2006. However, long before 9/11, sixty-eight percent of the Russian population
were said to be in favor of Putin’s war on Chechen rebels, with twenty-four percent
in favor of negotiations preceding any use of force (Zaks, 2004). However, after 9/11,
the government further strengthened its anti-terrorism laws and its anti-terrorism
actions became more aggressive, either because it was the politically opportune time
to do so (where the laws could be more easily justified to critics), or because of some
alliance with the U.S. in the “war on terror.” Regardless of the true motivation, it
is very clear that President Putin and the Russian government stressed repeatedly
to foreign leaders and the world at large that the Russian government’s conflict
with Chechnya was part of the international “war on terror.” Indeed, it has been
alleged that Putin “made a habit of mentioning that he was the first world leader to
console George W. Bush over September 11” (Zaks 2004). In fact, only one day after
9/11, President Putin asserted that Russian and the United States had a “common
foe” as “Bin Laden’s people are connected with the events currently taking place
in our Chechnya” (Human Rights Watch, 2005). Again, about two weeks later, on
September 24, 2001, Putin remarked that his government’s actions in Chechnya
“could not be considered outside the context of counter-terrorism” (Human Rights
Watch, 2005). This largely was accepted, expressly or implied, by various world
leaders. Bush, when asked about this issue at press conferences, remained largely
silent about the issue. Then-German Chancellor Gerhard Schroeder publicly
announced that after 9/11, “as regards Chechnya, there will be and must be a more
differentiated evaluation in world opinion” (Human Rights Watch Report, 2005).
At the same time, the Italian Prime Minister (Silvio Berlusconi) stated that “we’ll
probably have to judge things differently than we have done until now regarding
Chechnya. But it does not mean forgetting about various rights such as human, civil
and political rights” (Human Rights Watch Report, 2005). Thus, even though Russia
has deployed troops in Chechnya two significant times in the 1990s, Russian leaders
now “have described the armed conflict there as a counter-terrorism operation and
have attempted to fend off international scrutiny of Russian forces’ abusive conduct
by invoking the imperative of fighting terrorism” (Human Rights Watch Report,
2005).
130 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Thus, while Russian laws and anti-terrorism were described as “harsh,”
“stringent” and “tough” before 9/11, Russia has amplified its aggressive approach
after 9/11. Russia now takes a very hard approach to terrorism actions, and is
not slow to quash actions with military force and overwhelming force. Russia is
similar to Israel in that both countries utilize the military in accomplishing their
counter-terrorism objectives. For Russia, operations in Chechnya are much akin
to war-time operations with a foreign nation. Yet, the Russian response, perhaps
reasonably, becomes more stringent after each terrorist attack. Each attack, and the
government response, illustrates Russia’s penchant for the utilization of military
forces to handle domestic terrorist attacks. For instance, in October 2002, Chechen
terrorists took over seven hundred people hostage in a Moscow theatre (Moscow’s
Dubrovka Theatre), and killed several of the hostages. The terrorists demanded the
withdrawal of troops from Chechnya. This is a textbook illustration of using mass
violence to achieve political aims. The crisis only came to end three days later when
the Russian government made the decision to send in Russian Special Forces troops
to attempt to liberate the hostages. The Russian Special Forces filled the Theatre
with a still undisclosed mysterious gas. While approximately six hundred hostages
were rescued, and approximately fifty terrorists were killed, 129 of the hostages
were killed as well. After an incident such as this, one can understand a militaristic
response by the Russian government in their anti-terrorism measures. These
incidents also have strengthened the resolve of the Russian government in passing
more stringent laws. Another deadly attack came in 2004 when a terrorist attack took
place at a school in Beslan. After a standoff of several days with hostages crammed
into a gymnasium, Russian Special Forces exchanged gun fire with the terrorists,
leading to a conflagration of the building, and a total of three hundred and thirty
one hostages dying during the governmental operations. As a result of these deadly
attacks, the government began circulating proposed changes to the law, allowing for
more stringent treatment of suspected terrorists. At this time, the Russian Minister
of Interior commented that he thought “the necessity to step-up the struggle against
terrorism must be reflected in our laws. We shall submit a proposal to prolong the
period of detention of those suspected of being involved in terrorist acts to 30 days.”
According to the BBC, the Russian Federation Council acted overwhelmingly a
short time later when it voted to approve amendments the Criminal Code which
would extend the “period for bringing charges from 10 to 30 days in the case of an
investigation of a terrorist nature” (BBC Monitoring, 2004).
There was also been revitalization of the powers and resources of the federal
police, arguably not seen since the days of the Soviet Union. In September 2004,
it was announced that spending and resources for the Federal Security Service was
now three times as large as when Putin first came to power five years before (Zaks,
2004). Indeed, within months after the school hostage crisis in Beslan noted above,
Defense spending went up over a third of its usual amounts (Zaks 2004). Further,
and quite significantly, as if the executive in Russia did not enjoy adequate powers
already, on March 6, 2006, President Putin signed into law a more stringent anti-
terrorism law than the 1998 legislation. It has been claimed that this new law was
 Russia 131
needed based not only upon recent terrorist attacks in Moscow and Beslan, but also
because international agreements and obligations (such as UN Security Council
Resolution 1624 and Council of Europe Convention on the Prevention of Terrorism)
which mandated changes to domestic laws. Russia acceded to the Council of
Europe Convention on the Prevention of Terrorism through the enactment of federal
legislation on April 21, 2006. Anticipating this ratification, the new anti-terrorism
package was quickly passed by overwhelming numbers in the State Duma (lower
chamber of parliament) on February 26, 2006, and the Federation Council (the
upper chamber) on March 1, 2006. This new 2006 legislation was first drafted and
conceived after the school hostage crisis in 2004, and had its first reading in the
State Duma several months after the Beslan school attack. However, the legislation
took several years of negotiation, as many were concerned the legislation infringed
too severely on the civil liberties of ordinary citizens and gave too much power to
federal law enforcement (Voice of America News, 2006). Critics of the legislation
also have argued that the law “is too bureaucratic in nature and fails to provide a
concrete definition of what constitutes a terrorist act” and “fails to provide any real
mechanisms for resisting terrorism” (Voice of America News, 2006).
First and foremost, the 2006 anti-terrorism legislation, consistent with the
approach of the United States under the reign of President Bush (or at least the
Bush administration’s interpretation of the “unilateral” powers of the President
under the Constitution), has vested the Russian President with the authority to
use the armed forces to fight terrorism in or outside of Russia. While the March
2006 legislation granted Putin the authority to utilize the armed forces and special
forces within Russia to quell terrorist threats, this provision was quickly amended
within four months (in July 2006) to allow the President to also deploy both the
armed forces and the Federal Security Service (FSB) outside of Russia in the war
on terrorism (“Russian Lawmakers Back Putin on Use of Forces Abroad to Fight
Terror,” 2006) (Redichkina & Barinov, 2006). According to the head of the Russian
National Antiterrorist Committee, Director Nikolay Patrushev, “the law resolves
the long overdue problem of the legal basis for participation by the armed forces
in operations to combat terrorism. Not only are the legal foundations for their
participation established, but provision is also made for the right to use weapons and
combat equipment in cases stipulated by our legislation” (Yamshanov, 2006). After
the enactment of this provision, Russian Airborne Forces have begun training and
developing standard operating procedures for counter-terrorism/military operations
inside the country. According to Airborne Forces Commander General Alexander
Kolmakov, “they are undergoing special anti-terrorism training courses in the
vicinity of takeoff airfields and are ready to start fulfilling the mission in compliance
with the pre-approved counter-terrorism procedures” (Russia & CIS Military
Newswire, 2006). Significantly, the new law authorizes the military to shoot down
any aircraft—even commercial airlines—if the plane is hijacked and it appears that
the plane will be utilized to strike “vital facilities or tensely populated areas” (“Putin
Signs New Anti-Terrorism Legislation,” 2006). Phrased another way, the military
should shoot down a plane “if the terrorists reject an order to land and if there is ‘a
132 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
real danger of death to people or an environmental catastrophe’” (Abdullaev, 2006).
The law allows for this action, for planes or ships, and even if the vessel is innocent
individuals are on board. However, this provision is troubling to some critics who
argue that the law is unclear “how to judge that a hijacker’s threats or promises are
reliable and how to establish that all means to ground a plane have been exhausted”
(Abdullaev, 2006). Furthermore, the law does not clearly specify at what level the
decision should be made. While the law vests the chief of the regional branch of the
Federal Security Service with the authority to conduct an anti-terrorism operation, it
is unclear whether this official orders a plane be shot down, or whether the command
can come from a military official “on the ground” and in the position to properly
access the situation. It is interesting to some to note that the one person who is
clearly not the decision-maker for shooting down the plane would be the President,
which critics say allows the President to be insulated from criticism and political
fallout should the wrong decision be made to shoot down an airline or sink a ship.
In response to critics, the government has promised that Defense Minister Sergei
Ivanov would issue a secret order delineating the operating procedures and rules of
engagement for shooting down an airline, or sinking a ship. However, the order is
considered a state secret, so this information is not available to the public. With this
provision, Russia joins the United States, Poland, India, Slovakia and Ukraine, who
all have also publicly announced the policy of doing the same. Germany had also
promulgated a law allowing the government to shoot down threatening planes, but
as discussed in Chapter Three, the law was struck down by its Federal Constitutional
Court. However, Russia stands alone in allowing the decision to down a plane to
be made a pretty low level of government. The other countries require the decision
be made by the executive/head of state, the defense minister, or the head of the
country’s air force (Abdullaev, 2006).
The second notable aspect of the March 2006 anti-terrorism law is that it provides
for the specific delineation of how each actor in the state system is responsible for
ensuring that counter-terrorism actions are taken. At the top of the hierarchy is the
President of the Russian Federation, which has the power to formulate overall state
policy in counter-terrorism measures, and as described above, has the military at his
disposal in this regard. Next down is the National Antiterrorist Committee, which
like the old Federal Antiterrorist Commission, is vested with the responsibility of
coordinating appropriate counter-terrorism responses with the federal government,
as well as with the local and regional governments. Finally, under this new law, local
and regional governments have an obligation to maintain operational staffs which
are able to respond to terrorist incidents and threats within their area/jurisdiction,
and ensure counter-terrorism operations are conducted as well. According to the
United States State Department in its 2005 report on counter-terrorism measures
by countries around the globe, “all Russian regions [have] passed regulations to
strengthen counterterrorism measures…following the 2004 Beslan school siege”
(State Department, 2006). Thus, again according to Security Director Patrushev, the
main thrust of the new law “is to grant powers to all state and local government
bodies. Each of them, at its own level and in accordance with its potential, should
 Russia 133
participate in countering terrorism” (Yamshanov, 2006). This provision was deemed
very important in light of the failures of the local government in responding to the
Beslan crisis, which according to post-Parliamentary commission assessment, was
partially to blame for the results of this incident. So, in a sense, the Russian approach
is move towards a decentralized approach (like Japan or the United States) to law
enforcement in the counter-terrorism context.
Third, the anti-terrorism law passed in March 2006 also designates the Federal
Security Service (the successor organization to the old Soviet KGB) with the lead
role in anti-terrorism measures within Russia—with the armed forces to be utilized
outside of Russia or in such actions as shooting down a hijacked plane or ship. The
Federal Security Service is also empowered in this legislation to wiretap and intercept
telephone conversations, presumably without any judicial warrant or oversight. The
Federal Security Service is also empowered under the legislation to negotiate with
terrorists during an attack or hostage situation, but expressly forbids consideration
being given to the demands made by terrorists. Phrased another way, while the
Security Service can negotiate, it ultimately cannot make political concessions to
the terrorists in order to end the crisis (Voice of America News, 2006). Director
Patrushev has explained that this provision “removes the ground from beneath the
terrorists’ feet and deprives them of the objectives for the sake of which a terrorist
act might be committed” (Yamshanov, 2006).
Fourthly, the law does substantively augment the domestic criminal laws
pertaining to terrorism. Notably, like Germany and the U.K., the new Russian law
includes within the definition of terrorist activity those who engage in the “incitement
to commit a crime of a terrorist nature, as well as the dissemination of information
or materials calling for terrorist activity or substantiating or justifying the need
for such activity” (Yamshanov, 2006). Russia’s version of the criminal offense
for the “glorification of terrorism” is arguably more sweeping than that in place in
either the U.K. or Germany, as included within the provision are even those who
unintentionally disseminate or distribute materials of a terrorist nature. The law also
delineates specific delineates counter-terrorism measures to be taken by the state to
include the three main areas of “preventing terrorism, combating it, and minimizing
and eliminating its consequences” (Yamshanov, 2006). Finally, in a set of provisions
which take effect on January 1, 2007, compensation schemes/packages are provided
for the victims of terrorist acts within Russia.
The possibility of further stringent legislation is on the agenda for the coming
next several years as well. For instance, in March 2006, within weeks of when the
above terrorism legislation was enacted, a group of deputies in the Duma proposed a
new set of stringent provisions meant to further strengthen the state’s power to deal
with terrorists. This proposed law would allow for such things as criminal trials in
absentia (if the individual will not be extradited to Russia from abroad or refuses
to return to Russia), allow for the confiscation of property of those convicted of
terrorism, restrict media access to information pertaining to anti-terrorism measures
and/or operations taking by the government, and allow law enforcement to conduct
surveillance and searches for up to forty-eight hours without having to seek a judicial
134 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
warrant “when there is evidence that a grave crime might be committed to pose a
threat to the state, military economic or ecologic security of Russia” (Saradzhyan
2006). Perhaps most powerful of all the provisions, the Federal Security Service
would be vested with the power to limit the civil rights of citizens for two days
before seeking judicial approval of the constitutional abridgment, “in extraordinary
and pressing cases.” (Abdullaev, 2006). The law also would allow the government
to ban the press and/or media from the “dissemination of materials that either call
for terrorism or provide grounds for or justify terrorism,” obviously a provision that
can greatly stifle free expression (Saradzhyan 2006). While this bill “might be a trial
balloon launched by government hard-liners so as to gauge public reaction and soften
the draft accordingly,” many of the proposed provisions were in the original drafts of
the terrorism legislation enacted in early March 2006, and arguably have legitimate
support (Abdullaev, 2006). Furthermore, the legislation overwhelmingly passed the
State Duma in its first reading in April 2006 by a vote of 419-5 (Saradzhyan 2006).
In addition to the above enacted and proposed legislation, Russia announced that
that it would promote anti-terrorism measures as part of its presidency of the G8.
Among its international initiatives would be the “harmonization of anti-terrorism
laws” among the G8 members (RIA Novosti, 2006). Russia also played a significant
role in helping secure the passage of the International Convention on the Suppression
of Acts of Nuclear Terrorism in the UN General Assembly, which has since been open
for signature and is the thirteenth UN document directed towards the combating of
terrorism. Russia has also entered into numerous joint law enforcement ventures with
the United States, including a joint counterterrorism task force between the FBI and
the Federal Security Service, an agreement facilitating the sharing of information on
man portable air defense systems, and an agreement allowing for closer cooperation
and the sharing of information pertaining to counter-narcotics operations.
Finally, Russian law prohibits actions and speech which serve as an incitement to
enmity and hostility based upon a person’s religion or national origin. The law also
prohibits speech that tends to create or instill in the listener racial or ethnic hatred.
The Russian government has used this law very extensively to prohibit any conduct
or speech which might even remotely have the tendency to stir up animosity among
individuals in society. Hence, in March 2006, two museum curators were prosecuted
and found guilty of the charge of inciting national and/or religious animosity, as the
two organized a museum exhibit (called “Caution, Religion”) showcasing artwork
which depicted religious symbols in the art. In November 2005, a newspaper
editor was prosecuted for inciting racial animosity because he allowed articles to
be published which were authored by a Chechen rebel/insurgent, and which called
for a peaceful termination of the Chechen crisis (Amnesty International, Russian
Federation Country Report, 2006).
 Russia 135
A Brief Note About Cases in Recent Times

According to the U.S. State Department, by the end of 2005, Russia had secured 28
terrorism related convictions and another 50 defendants pending terrorism trials in
early 2006. According to the State Department, noteworthy Russian cases in 2005
include the following:

In April, a Moscow court found two airport employees guilty of aiding and abetting the
terrorists who brought bombs onto the two Russian airplanes downed in August 2004; In
May, Russian authorities began the trial of Nurpachi Kuliyev, accused of taking part in
the 2004 terrorist school seizures in Beslan; In September, three people charged with a
gas pipeline explosion in Bugulma (two of them former Guantanamo detainees who had
been repatriated to Russia) were acquitted by a jury trial in Tatarstan (State Department,
2006).

Thus, the number of cases exceeds the United States, and puts it on par with the
judicial activities of Spain.
Furthermore, if governmental reports are to be believed, domestic law enforcement
activities in Russia to ferret out and extirpate terrorists have been successful. In May
2006, for example, Russia reported that is successfully thwarted a series of attacks
which would have occurred in early May. As part of the governmental operations,
“law enforcement agencies had detained 74 and eliminated 12 terrorists, mainly the
south of the country” (RIA Novosti, 2006). As part of the security operations leading
up to the governmental detentions and “eliminations,” the National Anti-Terrorism
Committee reported that “more than 30,000 people, 6,000 houses and 7,000 cars
had been checked during operations…” (RIA Novosti, 2006). In these operations,
the government also seized more than 113 kilograms (250 pounds) of explosives, 12
grenade-launchers, and a variety of weapon caches.
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 Chapter Six

Japan

Japan, like the United States, has not been the focus/target of extensive terrorist
operations until fairly recently. Thus, Japan, unlike the other countries discussed
in this book, does not have a long history of combating domestic insurgency
groups and home-grown terrorism. However, because of the rapid economic
and industrial expansion of Japan in the 1950s and afterward, along with a
westernization in many areas of society, the changes brought about dissatisfaction
on the extremes of the political spectrum, and gave way to small scale terrorist
acts (e.g. the use of exploding or fire starting Molotov cocktails). Thus, between
1969 and 1989, it is reported that Japan experienced more than 200 reported
domestic terrorist bombings, and that between 1978 and 1990, Japan was the
target of approximately 700 domestic bombings (Katzenstein, 2001). Yet, these
incidents are viewed as minor compared to the problems experienced in Israel,
Russia, Spain or the United Kingdom in dealing with PLO, Chechen, ETA, and
IRA based terrorism, respectively.
However, Japan’s world changed in 1995, like it did for the United States after
9/11. Specifically, in 1995, Japan was the victim of a large scale terrorist attack,
namely the nerve gas attack on the Tokyo subway by the Aum Shinrikyo (Cult of
the Supreme Truth) sect. The attack was responsible for 12 deaths and the injury
of approximately 5,000 individuals. In addition to the human toll, the event
illustrated the vulnerability (in Japan and abroad) of the transportation systems of
major metropolitan areas and the potential risks. Furthermore, the cult, estimated
to have approximately 10,000 members at the time in Japan, was also associated
and connected with a string of other criminal violations, including murder, false
imprisonment, kidnapping, guns and explosives violations, et cetera (Master of
Terror, 1995).
In addition to the arrest, prosecution and the conviction of the cult’s leader
(Asahara Shokou), along with approximately one hundred other members of the
group, Japan also stiffened its laws following the attack. Thus, for example, the
“government’s power to seize assets were increased after the nerve-gas attack by the
Aum Shinrikyo sect in 1995” (“Tricky Business,” 2001). Also, prior to 1995, like
Germany prior to 2001, the police afforded great deference to religious groups and
activities, even it had overshadows of criminality, and “prior to the sarin gas attack,
the police simply did not conceive of religious groups as posing a serious threat to
state security” (Katzenstein, 2001). This all changed after the attack in 1995—as will
be addressed more fully below.
138 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Constitutional Law and Limitations

Like Germany, and because of the United States’ influence after World War II, Japan
has constitutional provisions which attempt to limit its ability to use military force
in an aggressive manner or initiate wars. Thus, like Germany, Japan has serious
constitutional impediments to fighting terrorism as is being promoted by the United
States, namely a global “war on terror” and fighting the war “there” or “abroad,”
instead of “at home.” Most significantly, Article 9 of Japan’s Constitution, which went
into effect shortly after World War II in 1947, arguably prevents Japan from using its
military—even perhaps in self-defense. One can easily see how this constitutional
provision impacts the “war on terror.” Phrased simply, like Germany, waging the
“war on terrorism” abroad is not an option for Japan—largely for constitutional
reasons.
Article 9 of the Constitution specifically provides as follows: “Aspiring sincerely
to an international peace based on justice and order, the Japanese people forever
renounce war as a sovereign right of the nation and the threat or use of force as
a means of settling international disputes. In order to accomplish the aim of the
preceding paragraph, land, sea, and air forces, as well as other war potential, will
never be maintained. The right of belligerency of the state will not be recognized.”
Additionally, while not legally binding, the preamble to the Japanese constitution
offers additional guidance that many have used in the interpretation and construction
of Article 9. The preamble to the constitution specifies that the Japanese “shall
secure for [themselves] and [their] posterity the fruits of peaceful cooperation with
all nations” and that the Japanese people resolve “never again…[to] be visited with
the horrors of war through the action of government…” and “have determined to
preserve security and existence, trusting in the justice and faith of peace-loving
peoples of the world.”
Of course, how stringently or broadly Article 9 is to be interpreted is subject to
debate. Some scholars argue that Article 9 prohibits the utilization of any military
force, even in self-defense of the nation in an attack or impeding attack. These
scholars argue that the Japanese constitution mandates that such problems be rectified
through international diplomacy and negotiations. However, since the 1950s, the
Japanese government has argued that Article 9 speaks only in terms of aggressive
war-making and “war potential,” and does not impinge on Japan’s inherent right of
self-defense, which is clearly delineated and provided to all nations under Article 51
of the United Nations Charter. Thus, starting in the 1950s, Japan created a National
Police Reserve, which then became the National Safety Force, and finally, the
Japanese Self Defense Force. However, to illustrate the magnitude of today of this
“self-defense” police force, it is helpful to compare its funding and resources with a
country such as the U.K. It was reported in 2005 that Japanese Self Defense Force is
composed of approximately a quarter million members, and enjoys an annual budge
of approximately $50 billion (Chinen, 2005). This means that the budget of the SDF
is larger than the budget of the U.K. armed forces.
 Japan 139
In terms of the “war on terror” after 9/11, Japan has continued to expand/push the
boundaries of Article 9. For instance, and by contrast, in 1990-1991, Japan refused
to provide any military in support of the coalition forces against Saddam Hussein,
and provided financial support instead. This decision was based largely upon Article
9 considerations. However, after 9/11, Japan appeared to be much more willing to
provide actual military assistance. For instance, Japan sent Japanese Naval forces
to the Indian Ocean to provide logistical support to U.S. troops in Afghanistan, and
approximately 600 soldiers for service in Iraq, providing logistical and humanitarian
assistance (Chinen, 2005). However, despite this expansion, and while Japan may
provide financial and moral support to the United States in its “war on terror,” as well
as assist the UN with strictly peacekeeping functions, Japan is nonetheless limited in
taking the same full fledged military response/approach itself, that the United States
has taken on its “war on terror.” Phrased another way, if Japan were to learn that a
domestic terrorist organization was operating in Iran, Japan could not (at least not
without major constitutional discussions) take its war on this group to Iran.

Japan’s Law Enforcement Structure after World War II

Prior to American influences at the end of World War Two, Japan had a very long
influence of law enforcement being conducted via a centralized authority, namely
controlled by the country’s Shogun Ruler (from 1600-1868), with arms of the
Shogun’s authority in every town and village in the form of local police, judges, et
cetera. This long practice of centralized policing was further enforced by the 1873
reorganization of the police, which placed law enforcement under the auspicious and
authority of a Home Ministry (which was subsequently abolished in 1947). However,
with American occupation following World War II, the United States, viewing any
centralization as potentially counterproductive to the fresh peace, pressed upon
Japan the notion of decentralized policing. This influence led to the Police Law of
1947, which seemed to promote decentralization in that local police forces around
the country were independently established and the Home Ministry was abolished.
Further, under this law, “all cities and towns with populations of 5000 and over were
told to establish a police force, and as a result some 1600 independent municipal
police departments were organized” (Reichel, 1999). Towns with less than 5,000
citizens fell under the then-new National Rural Police, which assumed responsibility
for these “rural” areas. However, again influenced by the United States and its
penchant for decentralized policing, the National Rural Police “was organized at
the prefecture level with very limited national level involvement” (Reichel, 1999).
The reader will recall that the United States took the same approach with post-war
Germany, as discussed in Chapter Three, and Germany relatively quickly threw off
this decentralized post-war notion to policing.
After several hundred years of centralized law enforcement, Japan likewise
chaffed under this newly instituted artificial decentralized law enforcement model
from abroad. Local corruption issues became apparent, and is a problem frequently
140 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
experienced within the United States and its decentralized police force as well. Thus,
in June 1951, smaller communities had the option of merging their municipal police
organizations with the National Rural Police, and approximately eighty percent of
these small towns and cities eliminated their local forces, and placed reliance in
the National Rural Police. Then, in 1954, the policing structure was again revised,
eliminating the dual decentralized policing structure (between the National Rural
Police and local police forces) and replacing it a largely centralized prefectural force,
the structure that remains the basis for policing in Japan today.
While there does appear to be some bifurcation of policing between the national
government and local authorities in that there exists several national offices and
seven regional police bureaus throughout the nation, in practice these agencies
perform administrative details, such as crime reporting and statistical analysis,
and the local authorities (organized under prefectures) are largely left to their own
Virtually all of the actual police work is done by the various local police under the
prefectural organizations. At present, there are 47 different prefectures, which have
been described as being “similar in concept to American states and in size to large
American counties” (Reichel, 1999). The prefectures are often further subdivided
into districts.
Japan has also successfully employed something called koban, or a “police
box” (chuzaisho in rural areas). It has been described as, literally, a “police box”
or presence in the middle of the lives and day to day affairs of the local citizenry.
The size of this police presence ranges from “kiosk-like structures at busy street
intersections to a quaint house on the bank of a canal” (Reichel, 1999). In the rural
areas, the chuzaisho is a house where a local police officer and his or her family
reside. This is, perhaps, one of the best illustrations in the world of community
policing, where local law enforcement is truly integrated into the neighborhood, and
knows everyone by name and face—similar to the neighborhood bobby walking the
beat, at least according to the original intents when introduced by Henry Fielding
in London in the mid-1800s. The number of officers serving as part of the koban is
6600, while the chuzaisho number over 9000 (Reichel, 1999). Thus, Japanese police,
under this practice of koban, seem always to be on the scene, while law enforcement
in the United States, for example, respond and arrive to a problem, but are not there
from the onset (at least not to the same degree as the koban). Indeed, one author
has described the difference between the United States and Japan as follows: “An
American policeman is like a fireman—he responds when he must. A Japanese
policeman is more like a postman—he has a daily round of low-key activities that
relate him to the lives of the people among whom he works” (Reichel, 1999). Thus,
in contrast to countries like Germany and the United States, Japan can be said to
have “pursued a low-technology anti-terrorism policy…[through] in informal police
practice” (Katzenstein, 2001).
A law enforcement tactic/activity in Japan that has been largely embraced by the
Japanese people, and which has been attributed as contributing to a great reduction
in crime, is the bi-annual residential survey. Police officers from the various Kobans
throughout Japan visit every residence within their jurisdiction and conduct a survey
 Japan 141
on the occupants. Information is traditionally gathered on the following topics/issues:
names of occupants; ages of occupants; occupations of occupants; any information
pertaining to criminal activity in neighborhood; information on confrontational
situations in the neighborhood; et cetera (Reichel, 1999). This information is then
recorded and stored at the Koban. This practice allows law enforcement to know
the occupants of the neighborhood, as well as what is occurring within the area.
According to one author, this information is “willingly answered by most people.”
As a consequence, “the social presence of the police thus is pervasive, unofficial and
low-key” (Katzenstein, 2001). Query whether or not such a police activity would
be accepted in western nations such as the United Kingdom or the United States, or
whether or not it would be viewed as a violation of privacy rights.
The law enforcement powers are described as being very comprehensive—
accounting for its 99% conviction rate. Police are also “content to wait, five, ten,
fifteen years or longer before making the arrests of key individuals, either in Japan
or through luck abroad.” The police furthermore have “perfected the technique of
searching, without warrants, hundreds of thousands of apartments when important
public functions seemed to require it. Changes in informal practices thus increased
police power in substantial ways” (Katzenstein, 2001).

Terrorism Laws in Japan Prior to 9/11

At the onset, it should be noted that Japan does not have an express provision or statute
regulating and defining the criminal offense of “terrorism.” Rather, Japan relies on
other domestic criminal laws, as delineated below, in order to try suspected terrorists.
After the sarin gas attack in 1995, Japan amended its laws to two chief areas, one
dealing with government regulation of religious groups, and the other area dealing
with increasing/improving the ability of the government to gain information about
crimes via wiretaps and surveillance. First, as it relates to increased regulation of the
activities of religious groups, Japan sought amendments to its Religious Corporation
Law of 1951. The Religious Corporation Law of 1951, prior to amendment in 1996,
required groups of a religious character to register with the government (particularly,
the Ministry of Education). By registering, the religious group then qualifies for
tax exemptions and status as a “religious corporation.” Notably, the Ministry of
Education can refuse to grant certification to a group if the group is engaged in
illegalities. Also, under Article 81, Japanese courts are empowered to dissolve any
group that violates the law, injures the public or deviates from main purpose of its
avowed religious nature. This law has clear implications to Islamic based groups
which might also be engaged in militant activities, like has been seen in the U.K.,
Germany and Spain.
Because the 1995 attacks were completed by a religious group (Aum Shinriky),
the government immediately sought to dissolve the group under Article 81 of the
Religious Corporation Law. In Aum Shinriky v. Doi (1996), the Japanese Supreme
Court had no problem dissolving the group for its active role in producing the gas
142 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
and making it available to the members who then perpetrated the attack, finding that
the religious group “clearly violated the law in a way that profoundly endangered the
public welfare and engaged in behavior significantly deviating from the objectives of
a religious organization.” However, the government also proposed new amendments
to the 1951 Religious Corporation Act, in order to exercise greater surveillance over
the actions of these groups. Thus, the 1996 amendments to the Act required that
religious groups, as part of the registration process, must now annually submit a list
of all properties owned by the group, a list of its leaders/executive members, and a
list of its financial accounts. Furthermore, under the amendment, members of the
religious group can be questioned by the government as to the group’s corporate
status when the authorities have reason to suspect that cause exists “(1) to suspend
profit-making activities [of the group]; (2) to rescind the certification of incorporation;
or (3) to dissolve the corporation pursuant to section 81(1)(i)-(iv)” (Japan Policy
and Politics, 1996). The amendment also allows any person injured or negatively
impacted by the group to request a governmental review of the religious group’s
certification paperwork—which after 1996 includes a bevy of financial documents
and property holdings. This government review would be completed by the Ministry
of Education—thus ensuring national level review of the group’s activities.
In addition to the amendments to the Religious Corporation Law following the
1995 attacks, Japan also significantly augmented the power of its law enforcement
in the area of electronic surveillance/wiretapping and through amendments to its
Anti-Subversion Act. In terms of electronic surveillance, on August 12, 1999,
the Japanese parliament promulgated new legislation giving new wiretapping/
surveillance powers to the police. Specifically, the law, which passed by a margin of
142 votes in favor and 99 opposed, allows law enforcement (with a judicial warrant
issued by a district court judge) to wiretap private communications in criminal
investigations involving weapons violations, drugs, homicide committed by groups,
and the wholesale smuggling of individuals into Japan (Japan Policy and Politics,
1999). Terrorist attacks, which by definition involve actions of violence and death to
civilian targets by terrorist groups, are subject to this wiretap authority. According
to one article, the law should be utilized in cases only when there is a very strong
belief that crimes have been or will be committed and no other investigative means
or methods can provide law enforcement with the pertinent information (Yomiuri
Shimbun/Daily Yomiuri, 1999). Further, law enforcement has promised that this
wiretapping authority would be a major tool against organized crime. However, as
with any governmental program involving clandestine surveillance, concerns exist
over whether or not the program violates the civil rights of individuals, namely
privacy. In 1999, for instance the Jehovah’s Witnesses claimed that the government
wrongfully engaged in surveillance of its religious activities, a charge that the
government of course denied (State Department Report: Japan, 2000).
Like the United States, and modeled after the U.S. Subversive Activities Control
Act of 1950, Japan enacted its Anti-Subversive Activities Law (Hakai Katsudo
Boshiho) in 1952. This law was in turn based upon a 1949 law in Japan entitled the
Organization and Other Activity Regulation Ordinance of 1949 that covered “any
 Japan 143
organization which had attempted to resist or oppose the authority of the occupation
powers, or to assist or justify any policies of overthrowing the governmental scheme
by violence.” The 1952 Anti-Subversive Act follows up on this 1949 law, and largely
targets the communist party (as did the 1950 U.S. Act). However, relevant to terrorism
cases today, Article 4 of the Act prohibits and criminalizes both organizations and
individuals who engage in “subversive activities by violence.” Subversive activities
are defined in the law as including crimes such as treason and insurrection, as well as
“regular crimes defined by the criminal code…committed with special motivations”
(such as political motivations). As such, acts of terrorism clearly falls under this
definition of “subversive activities.” Interesting, this law was not utilized by the
government as grounds for prosecution and government intervention with violent
groups before the Tokyo subway attack in 1995. However, the law was dusted off
immediately following the incident.
Believing that the law was in need of updating, the Japanese government sought
amendments in 1999, which were approved and went into effect on December 27,
1999. The amendments to the law significantly improve the powers of Japanese law
enforcement (and the Public Security Investigation Agency, in particular) vis-à-vis
potentially violent and subversive groups. The amendments to the Anti-Subversion
Law provide that if members of a group have committed “mass murder” in the past, the
group is subject to the following heightened restrictions: first, group property subject
to search without warrants; second, groups can be unilaterally separated and evicted
from its lands/property; third, group assets can be seized to compensate victims of
crimes committed by group members; and fourth, groups under investigation must
submit information about its members and the nature of its activities. Additionally,
once the group has been found to have violated the Act, the group of course loses its
corporate status as a certified religious organization.
As is the case with Spain and Israel, Japan does not have the offense of
“terrorism” per se, but rather relies on the normal provisions of its Criminal Code
of 1907. That is, a terrorist would be tried for whatever underlying crimes he/she
committed—for example, homicide, kidnapping, insurrection, et cetera—and not
a specially drafted terrorism specific offense. There exists a bevy of other criminal
law offenses that would apply to those committing acts of a terrorist nature. For
example, Japan has domestic laws prohibiting the use of explosives and nuclear
materials for improper purposes, or even possession of these items without a
government permit. Japan has also passed some very specific laws combating the
usage of weapons historically utilized by terrorists in Japan. During the 1960s-
1980s, Japan experienced many isolated attacks using Molotov cocktails. As
such, Japan enacted in 1972 a provision entitled “Law for Punishment for the
Use of Glass-Bottle Grenades,” which prohibits the possession or use of Molotov
cocktails or gasoline bombs. Similarly, after the 1995 attacks, Japan enacted a
provision entitled “Law Concerning the Prevention of Bodily Harm Caused by
Sarin Gas,” which call for a maximum sentence of life imprisonment for the use of
Sarin gas, or any other lethal substance.
144 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Terrorism Laws in Japan after 2001

After 9/11, the most significant legislation passed by Japan in response to the terrorist
attacks in New York and Washington was the Anti-Terrorism Special Measures Law,
passed on October 29, 2001. The impetus for this law was in the strong support
Japan pledged to the United States in the immediate aftermath of the attacks. For
example, on September 12, 2001, the Japanese Prime Minister stated that Japan
would “spare no effort in providing necessary assistance and cooperation [to the
United States].” Given that Article 9 (discussed above) prohibits the use of military
forces in combat operations, the Diet approved the Anti-Terrorism Special Measures
Law, authorizing Japanese use of its self-defense forces to assist the United States
on its global war on terror. While Japan is constitutionally precluded for using its
forces in an offensive manner, the Anti-Terrorism Special Measures Law allows for
logistical support of U.S. forces (i.e., “supply, transportation, repair and maintenance,
medical services, communications, airport and seaport services, and base support”)
in foreign countries (with the approval of that country) or on the high seas. Notably,
this 2001 law significantly expands the “theatre of operation” from that previously
interpreted by Japan under Article 9. That is, prior to 2001, the last set of laws
pertaining to this issue (1997 Guidelines on Operation of SDF), authorized the use
of its SDF only in “areas surrounding Japan.” Thus, this 2001 law is a significant
expansion of what Japan feels comfortable doing as part of the global war on terror
and under Article 9.
Most recently, on May 17, 2006, the Japanese Parliament enacted anti-terrorism
legislation. Most notably, the legislation requires that all foreign individuals who are
16 years of age or older must be fingerprinted and photographed upon the individual’s
entrance into Japan (The Advertiser, 2006). This law does not distinguish between
tourists or foreign residents (temporary or permanent) who seek to enter Japan for
business or educational opportunities. The law excludes children under the age of
16 and ethnic Koreans who are already permanent residents, as well as international
diplomats and those individuals invited into the country by the government (e.g.,
foreign leaders) (Ryall & Chan, 2006). The new law also requires that all incoming
vessels (air or sea vessels) produce passenger and crew lists upon arrival.
 Chapter Seven

Israel

The issue of terrorism in Israel seems to have accompanied, part and parcel, the
creation of the Israel state, which occurred on May 14, 1948. From its very earliest
days after May 1948, the country has been under siege by its neighbors in the
Middle East. Indeed, upon announcement to the world that the modern nation-state
of Israel was formed, the Arab League prompted declared a state of war. From
1948 through the early 1980s, Israel averaged a major war/conflict with its Arab
neighbors every several years. Repeated terrorist attacks have also occurred as
a result of this conflict with its surrounding neighbors. Historically, neighboring
countries have not only sought regime change in Israel, or change in policy, but
rather its total destruction as a nation-state. Even as late as 2006, this sad fact
is reflected in the President of Iran declaring the governmental policy of Iran in
seeking the destruction of Israel. In addition to the obvious problems caused by the
hostilities of Israel’s neighbors, Israel has had to deal with the Palestine Liberation
Organization (PLO), which has long embraced terrorism as a legitimate means/
tool to wrestle the West Bank and Gaza Strip from Israeli control, and in which to
establish its own permanency as a nation. The PLO historically utilized terrorism
to seek the violent destruction of Israel. For example, in the 1960s, Yassir Arafat
gained the reputation as a terrorist around the world, as he led the military arm of
the PLO—one which did not shrink from the idea of utilizing terrorist tactics in
achieving political goals. In addition organized groups, Israel has been the target
of repeated attacks by loosely organized terrorist organizations such as Hezbollah
and HAMAS. Hezbollah, based primarily in Iran, seeks to rid the Middle East of all
western influences, as well as any influence based upon Christianity or the Jewish
faith. HAMAS operates to raise funds for radical terrorists, as well as spreading
propaganda against Israel. Volumes, of course, have been written on the conflict
and problems existing in the Middle East in the last half-century, as well as the
probability for peace under the Oslo Peace Accords and the current Roadmap to a
permanent Palestine state and possibly peace between Israel and its neighbors in
the region. The purpose of mentioning the conflict here is simply to relay to the
reader why it is the Israel has felt threatened and under siege since the onset of
its existence in May 1948. Indeed, as will be discussed below, this constant state
of being at war and under siege is reflected in the fact that Israel passed its major
anti-terrorism law, the Prevention of Terrorism Ordinance in 1948, the same year
as its founding.
146 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Constitutional Structure/Considerations

Like the UK, Israel does not have an actual document called its “constitution.”
Indeed, although Israel’s early leaders called for duly elected bodies of state which
should be instituted “in accordance with a Constitution which shall be adopted by the
Elected Constituent Assembly no later than October 1, 1948,” neither the Constituent
Assembly nor the first Knesset was able to establish a Constitution (Guberman,
2000). Since a Constitution could not initially be established, a compromise was
reached (the Harari proposal/compromise of 1950), whereby the Israel Constitution
would be composed through the enactment by the Knesset of Basic Laws dealing
with certain broad categories/areas, including provisions relating to governance and
provisions relating to civil liberties. Thus, the first of several Basic Laws was enacted
in 1958, dealing with operation and powers of the Knesset. Then, shortly thereafter,
several additional Basic Laws were enacted, namely a Basic Law on Freedom of
Occupation and a Basic Law on Human Dignity and Liberty.
Importantly to subsequent legislation dealing with anti-terrorism measures and
homeland security, both the Basic Law on Freedom of Occupation and the Basic
Law on Human Dignity and Liberty contain a limitation clause. This limitation
clause reads as follows: “There shall be no violation of rights under [the] Basic Law
except by a law fitting the values [those relating to human rights] of the State of
Israel designed for a proper purpose, and to an extent no greater than required or by
the regulation or enacted by the express authorization of such law.” This limitation
clause has allowed Israel to deviate from certain individual protections in the name
of collective security of society.

Terrorism Legislation Prior to 9/11

Israel’s overall anti-terrorism policies have been described as “very consistent”

over time (Guiora 2005). Indeed, from its earliest days, the country has been
under siege by its neighbors in the Middle East. Thus, from the very beginning,
Israel has relied extensively on the use of its military to secure its borders and
to deal with attacks from within and without the country. Thus, at the onset, it
should be recognized that Israel’s utilization of the military is by far the most
strikingly approach than that of the other countries analyzed in this book. Israel
has consistently utilized its military to deal with the terrorist threats the country
has faced as far back as 1948, and military operations are considered “normal”
in Israel. This approach stands in stark contrast with the United States (and the
utilization of its military domestically) after passage of the Posse Commitatus Act
in the 1870s.
However, beyond this important factor regarding the use of the military in
domestic policing and investigatory actions, Israel’s domestic laws concerning
terrorism have also remained consistent over time. Indeed, Israel had the need to
promulgate anti-terrorism legislation in the very same year in which the Israeli state
was created, which is telling as to the threats that were levied against Israel, even
 Israel 147
from the onset of its journey as a nation-state. The anti-terrorism legislation that was
promulgated in 1948, the Prevention of Terrorism Ordinance No. 5708, remains the
chief statute pertaining to terrorism today. While the 1948 Prevention of Terrorism
Ordinance was amended several times, most notably in 1980, 1986 and 1993, the
substantive prohibitions in the 1948 remain operative today.
First, it should first be noted that the Prevention of Terrorism Ordinance
applies only in Israel’s permanent territory, including Jerusalem and Golan Heights.
The law does not apply in the West Bank and the Gaza Strip, locations subject to
Palestinian Authority control. Secondly, and quite interestingly, the law does not
create a separate criminal offense for “terrorism,” and leaves the term undefined
in the ordinance. Like Spain, those committing acts of terrorism, to the extent they
survive, are tried and treated under the normal penal laws for Israel. So, if a terrorist
detonates a bomb that kills other individuals, the terrorist would be tried under the
homicide/murder section of the penal law. Additionally, the penal law contains
several offenses that lend itself very well to terrorism cases, such as crimes against
humanity, crimes against the state, and crimes specifically directed towards Israeli
nationals or residents.
While the Prevention of Terrorism Ordinance does not create a criminal offense
of terrorism per se, the law does prohibit the support or membership in a terrorist
organization, and in Section One of the law, defines “terrorist organization” as “a
body of persons resorting in its activities to acts of violence calculated to cause
death or injury to a person or to threats of such acts of violence.” However, the law
also prohibits more indirect forms of participation, including “participating in its
activities, publishing propaganda in favour of a terrorist organization or its activities
or aims, or collecting moneys or articles for the benefit of a terrorist organization or
activities.” For those who engage in direct actions of the organization (i.e., planning
and management of the group activities) and are convicted, imprisonment for a term
not exceeding twenty years is called for in the statute. For those who are members in
the group and/or provide more indirect forms of participation (as delineated above),
the potential period of incarceration is a sentence not to exceed five years.
Interestingly, like the UK’s 2005/2006 “glorification of terrorism” provision, and
likewise laws in Germany and Russia, Israel also has such a law prohibiting “terrorist
speech” alone. It is interesting to note that, by far, Israel has had this law for the
longest period of time. Israel’s 1948 Prevention of Terrorism Ordinance provides, in
pertinent part, as follows:

4. A person who—
(a) publishes, in writing or orally, words of praise, sympathy or encouragement for acts
of violence calculated to cause death or injury to a person or for threats of such acts of
violence; or
(b) publishes, in writing or orally, words of praise or sympathy for or an appeal for aid or
support of a terrorist organization; or
(c) has propaganda material in his possession on behalf of a terrorist organization….
148 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
…shall be guilty of an offence and shall be liable on conviction to imprisonment for a
term not exceeding three years or to a fine not exceeding one thousand pounds or to both
such penalties. (Note: In 1986, the words “a fine not exceeding one thousand pounds” was
replaced with the words “a fine up to 22,500 NIS (as provided in section 61(a)(3) of the
Penal Law, 5737-1977)).

Furthermore, in July 1980, the above speech related provisions were amended/
augmented by inclusion in the following new paragraph (Section 4(g) of the
Prevention of Terrorism Ordinance, 5708-1948):

(g) does any act manifesting identification or sympathy with a terrorist organization in
a public place or in such manner that persons in a public place can see or hear such
manifestation of identification or sympathy, either by flying a flag or displaying a symbol
or slogan or by causing an anthem or slogan to be heard, or any other similar overt act
clearly manifesting such identification or sympathy as aforesaid.

Note that the above provisions go farther than the criminalization for those words
which are intended by the speaker as an incitement to violence or the advocacy of
illegal action. Speakers can be criminalized on words of praise and/or sympathy
alone—or in the case of the 1980 amendment, by displaying a flag, symbol or slogan
of a terrorist organization in a public place. This provision would criminalize, for
example, the use of a swastika (as a recognized symbol) in public.
Finally, another interesting aspect of the 1948 law was that, under Sections
12-21, anyone committing an offense under the law was subject to a trial in front of
a military court, and not a civilian court. The rules of procedure for the court were
based upon military procedures and then-Army Code 5708. Also, the members of
the court hearing the case would be members of the Defence Army of Israel, and
the president presiding over the trial would be a person qualified to practice as an
advocate (i.e., attorney) in the State of Israel. This provision/procedure is somewhat
analogous to the American approach of trying its so called “enemy combatants”
by military tribunals, instead of offering them hearings in U.S. civilian courts.
However, it should also be noted, as it pertains to Israel, that Sections 12-21 of the
1948 Prevention of Terrorism Ordinance were repealed by amendments in 1980. As
such, those tried after 1980 for violating this law are tried by a civilian court, the
rules and regulations governing the trial are the same rules that govern other civilian
courts and cases, and not the military procedures/rules in effect prior to 1980.
It should be noted that in the occupied territory yet to be turned over to the
Palestine Authority (i.e., portions of West Bank and Gaza Strip), a type of martial law
is still in effect. That is, when the territories were taken by Israel in the Six Day War
in 1967, Israel declared that the British Mandate Defense Emergency Regulations
would govern the region. These emergency regulations were in effect in the region
previously. Unlike normal Israel law, or even the Prevention of Terrorism Ordinance
noted above, the emergency regulations give the military great leeway in imposing
restrictions, detentions and expulsions as a means of controlling the region. It is
 Israel 149
under this special authority that Israel has conducted such operations as demolishing
homes and “targeted killings”—both practices described more fully below.
Since the Six Day War in 1967, Israel’s anti-terrorism measures have included
the following: 1) pervasive domestic use of the military in policing actions; 2)
imposing curfews in certain areas; 3) keeping suspected terrorists in administrative
detention when there is a lack of evidence needed to convict in a court of law, or a fear
about disclosing this evidence; 4) deporting suspected terrorists out of the country—
again often when evidence is lacking to support a conviction in the criminal justice
system; and 5) to the extent possible, putting suspect terrorists on trial in the domestic
criminal justice system (Guiora 2005). Israel has also augmented the powers of the
state in dealing with terrorism to include some very aggressive and controversial
measures that have also fueled international criticisms. For instance, in the effort to
punish those who commit terrorist actions, and dissuade those who might otherwise
be inclined to commit such acts, Israel (until recently) would demolish the homes of
terrorists, thus depriving the terrorist’s family of a place of habitation. This practice,
which was done for several decades, was finally suspended in 2005 (Myre 2005).
Israel has had to deal with threat of Hamas for years (arguably, since Israel’s
genesis as a nation-state in 1948)—much like the threat of the IRA in the UK, the
ETA in Spain, and the Chechens in Russia. While in earlier years, Israel viewed
the Palestine threat as more akin to civil disturbances such as stone throwing and
random acts of violence (and a threat that it could handle with low level domestic
policing actions), it has now (post-9/11) declared the Palestine terrorist threat as
being transformed from these acts of civil disturbance to bloody terrorist attacks
by way of suicide bombings and explosives. Thus, again post 9/11, Israel views
the terrorist threats as “armed conflict short of war,” and has implemented some
very aggressive counter-terrorism measures which reflect this mindset of being
“at war”—or close to it (Guiora 2005). According to the Israeli government, more
that 900 Israeli citizens have been murdered, with thousands more wounded and/or
maimed, since September 2000 (Israel’s Anti-Terrorist Fence 2005).
The most poignant example of this changed mindset of the terrorist threat since
9/11 is the governmental practice of “targeted killings.” Targeted killings basically
entail preemptive or anticipatory self-defense against the individual terrorist(s). That
is, according to Israel, because terrorist activities are now akin to “armed conflict,”
the terrorists are illegal/unlawful combatants (similar to the U.S. position in regards
to al Qaeda operatives held at Guantanamo Bay), are not entitled to normal civilian
protections, and can be deemed as legitimate targets if no other means are available
to thwart the person’s intended violence. Phrased another way, if law enforcement
believe, based upon reliable, corroborated and independent evidence (from separate
sources), that a person presents a serious threat to public order and safety, and there
is no other means available at thwarting said individual, law enforcement would kill
the individual before he or she was able to perpetrate the terrorist acts. Further, Israel
utilized the practice of targeted killings to kill terrorists training for potential attacks,
even though the date and time (or even likelihood) of the attack was unknown. This
150 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
extension of the “targeted killing” policy became evident in September 2004, when
an Israel helicopter attacked a training base.
This policy of “targeted killings” illustrates the opposite approach to treating
terror suspects as normal defendants in the criminal justice system. That is, as
discussed in preceding chapters, Germany and Spain, for example, handle and
adjudicate terrorism related cases through the generally normal operation of domestic
criminal laws and process. However, this can be contrasted with the approach of
Israel in regards to targeted killings, where the issue is analyzed and justified in
terms of the international laws pertaining to armed conflict. As one scholar has
written, “acts of terrorism against a country by non-state sponsored organizations or
individuals should be considered more than just criminal acts. Instead, they should
be considered acts of war against the victim nation” (Biggio 2002; Guiora 2005).
In 2005, Israel announced that it would suspend the practice of targeted killings, so
long as incidents of Palestine terrorism against Israel did not again escalate (Guiora
2005).
Another unique approach to anti-terrorism measures, and watched with some
interest by some in the United States, is the erection of a security fence (dubbed
the “anti-terrorist fence” by the Israeli government) between Palestine controlled
territory and Israel. At present, this security fence runs approximately 385 miles
(when completed, the barrier will span approximately 425 miles), and is described
by the Israeli government as a defensive measure to prevent acts of terrorism from
occurring. According to the Israel Defense Forces, the “anti-terrorism fence…
substantially improves the ability of the Israel Defense Forces to prevent the
infiltration of terrorists and criminal elements into Israel” (CNN 2004). In fact, Israel
has described the fence as being “vital, urgent and critical imperative, in order to
save civilian lives,” as part of its anti-terrorism laws. Indeed, according to Israel,
terrorist related activities have decreased by 90% in select towns and villages along
the fence-line (Israel’s Anti-Terrorist Fence 2003). Further, the government claims
that “the overall decline in the number and lethality of attacks in 2003—30% less
attacks and about 50% fewer killed compared to 2002—can also be attributed, at
least in part, to the construction of the anti-terrorist fence (Israel’s Anti-Terrorist
Fence 2003).
It should also be noted that the fence has been challenged at both the Israeli
Supreme Court, as well as the International Court of Justice at The Hague. First, in
terms of the latter challenge, the General Assembly voted to refer the question of the
legality of the anti-terrorist fence to the ICJ for an advisory ruling. On July 9, 2004,
the ICJ issued its advisory ruling in the matter, entitled “The Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory.” The ICJ ultimately
held that the barricade (fence or wall, depending on the perspective) was “contrary to
international law” and unlawfully infringed on Palestinian land and civil rights. The
ICJ ruling also stated that Israel is obligated under international law to return seized
land or provide reparations for damages to individuals injured by the fence (either
through the taking of land to build the fence, or in economic damages as a result of
the fence). Yet, immediately after the ruling, then Israeli Prime Minister Ariel Sharon
 Israel 151
announced that construction on the fence would continue. Dan Gillerman, the Israeli
ambassador to the United Nations, stressed the non-binding of ICJ advisory rulings,
and commented that “we should not be so detached from reality as to treat an advisory
opinion as though it were binding, and binding Palestinian obligations as though they
were nonexistent” (CNN 2004). Then, several weeks later, the UN General Assembly
passed a resolution calling on Israel to dismantle the fence/wall and comply with
the ICJ ruling of July 9, 2004. The resolution passed overwhelmingly by a vote
of 150 votes in favor, and 6 (including the United States and Israel) opposed. Yet,
according to the express terms of the UN Charter, UN General Assembly resolutions
are also non-binding, meaning that Israel is not compelled to comply. The only way
to make a General Assembly resolution enforceable would be to seek a Security
Council resolution in support and enforcement of the General Assembly resolution,
something that the United States would presumably veto as a permanent member of
the Security Council. Indeed, within a short time of the resolution, Israel condemned
the vote and stated that it would continue building the wall (CNN 2004). Gillerman
commented “thank God that the fate of Israel and of the Jewish people is not decided
in this hall.”
However, the challenge to the fence was a little more meaningful (and certainly
legally binding) when the issue was reviewed by the Israeli Supreme Court, also in
2004. The Court approved of the government’s need/justification to build the barrier
and held that the barrier/fence was legal in terms of the overall theory/concept.
However, the Court also held that sections of the fence, as erected in practice, too
deeply tear at “the fabric of [Palestinian] life” by separating people and institutions
(e.g., schools) entirely within the Palestinian Authority area. Hence, the Court ordered
that the government rebuild the section of the barrier to avoid cutting through and
separating “the fabric” of day-to-day Palestinian life, and infringing on the day-to-
day affairs of approximately 35,000 Palestinians. Practically speaking, Israel must
rebuild approximately nineteen miles of the barrier which runs west and northwest
of the city of Jerusalem (CNN 2004). Israel vows to maintain the fence/barrier for as
long as terrorism from Palestine remains a threat.
Thus, in terms of policing, Israel is said to employ a single, centralized police
structure (Reichel, 1999) which is said to take a very “aggressive approach” to
homeland security, including measures such as an effective “public-warning system,
its aggressive intelligence network, its ability to anticipate potential attacks and
choke them off” (Gibson, 2003). As alluded to above, military forces play a big role,
both inside and outside the country. A typical illustration as to military operations
outside of Israel relating to terrorism can be seen in Israel’s Operation Defensive
Shield, which was initiated in September 2000 after widespread terrorist attacks
against Israeli civilians in which hundreds were killed or wounded. As a result of
these attacks, the Israeli government authorized a widespread military operation in
the territories of Judea and Samaria, where the Israel government believed hundreds
of terrorists were hiding. While the territory of Judea and Samaria was held be Israel
after the Six Day War in 1967, it was turned over to the Palestinian Authority in 1993
after the Oslo accords. Thus, one goal of the military operations was to ferret out and
152 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
detain terror suspects. A second goal was to dismantle the terrorist infrastructure.
That is, Israel adopted the approach/strategy that has often been advocated by
President Bush in the United States, namely fighting the war on terrorism abroad, so
it minimizes the risks of having to fight the war at home.
Israel employs a centralized national police force, which is significantly
augmented by its military forces. Israel utilizes its military to arrest militants,
secure certain borders to occupied areas, and tries terrorists in military courts. The
utilization of the military (both operational troops and military courts) is permissible
under the emergency orders which govern the contested regions of the West Bank
and the Gaza Strip. For example, on Tuesday, March 21, 2006, two Palestinians
(Azzam Abu al-Adas and Bilal Hafnawi) from the West Bank area were indicted
by a military court for belonging to a terrorist organization (namely, Al Qaeda) and
for planning an attack at some place within the city of Jerusalem. Interestingly, the
individuals were arrested in December 2005, but information about the arrest, and
the circumstances regarding the plot, was not disclosed until March 21, 2006 (Myre,
2006).
Israel has also made frequent usage of electronic surveillance and wiretap
intercepts to prevent acts of terrorism. After being briefed by Israel intelligence
officers, U.S. Congressman Meek, of the House Select Committee on Homeland
Security, commented that “wire intercepts are key, along with keeping a database on
terrorist activity and the movements of terrorist operatives and their chiefs. [Israeli
authorities] have saved lives by being proactive and not reactive” (Gibson, 2003).
Israeli law also requires that each citizen carry a national identification card on his
or her person, and the card has the person’s picture, name and birth date on the card
(Gibson, 2003). It is said that “most Israeli citizens tend to be willing to sacrifice
some freedom to enjoy better protection” (Gibson, 2003). As with the other countries
analyzed, Israel has panoply of other offenses in its penal law which applies to many
different types of potential terrorist attacks. For instance, Israel’s law on explosives
prohibits the manufacture, transport, or trade of explosive devices or materials
without a government issued permit to handle the substances.
 Chapter Eight

International Law Components—EU and

International Law Considerations

While books are written about the subject of international law and terrorism and a
comprehensive analysis of the issue cannot be completed in the span of pages in this
book, it is incumbent upon readers to recognize that international law does provide
panoply of rights and options beyond those that exist by virtue of just domestic law.
Comparative law (and this book—being a comparative law book) focuses on the
domestic laws of individual countries and makes principled distinctions between
competing systems and approaches. However, there is a complete and separate
field, that of public international law, that imposes another layer of obligations upon
nation-states for combating terrorism, and offers separate options for enforcement
beyond the domestic law options of a given country. It is true that the incorporation
and enforcement of international law by incorporating said provisions/laws into a
country’s domestic laws is the primary and chief way in which international law
obligations are usually enforced. Once the obligations are incorporated domestically,
then the enforcement of these obligations is matter of the domestic laws. Yet,
international law does create certain supranational obligations which are by definition
independent of domestic laws, and for which provide for international law remedies
(e.g., Security Council enforcement actions for breach of the international peace
and security under Chapters VI and VII of the UN Charter). Thus, a few words on
the public international law regime are in order here. However, the reader should be
advised that the topic of international law and terrorism is worthy of book length
coverage in and of itself. The purpose here is merely to provide the reader a summary
understanding as to how international law augments the equation regarding terrorism
in the twenty-first century.

General Provisions of Public International Law

At present, there are approximately thirteen multi-lateral treaties and protocols

pertaining to terrorism. The various treaties deal with a range of issues such as the
theft of nuclear material, hijacking an airplane, taking hostages, et cetera. Some of
these treaties are as follows: Convention of Offenses and Certain Acts Committed on
Board Aircraft (1963); Convention for Suppression of Unlawful Seizure of Aircraft
(1970); Convention for the Suppression of Unlawful Acts Against Safety of Civil
Aviation (1971); Convention for the Prevention and Punishment of Crimes Against
154 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Internationally Protected Persons, Including Diplomatic Agents (1973); and the
International Convention Against the Taking of Hostages (1979); et cetera. To give
the reader a sense of how widely these treaties have been accepted and agreed to by
the various countries around the globe, the 1963 Convention referenced above (often
called the Tokyo Convention) and the 1970 Convention (often called the Hague
Convention) both currently have approximately 150 countries that signed the treaty
and generally agreed to the terms (minus various miscellaneous reservations that
countries may have taken in regards to a particular provision or term).
As a main feature, these multi-lateral treaties often impose upon the individual
signatory countries the obligation to pass domestic laws making the various rules
in the treaty a violation of the country’s domestic laws as well. The UN also assists
countries in drafting their own domestic laws, and can provide model laws to be
used by the member states for domestic incorporation. This then allows for any
signatory country to prosecute terrorists for violations as a matter of domestic law. If
a country signs the treaty, but does not then incorporate its obligations domestically,
the nation-state is then in violation of international law. In this regard, it is also
relevant to note the domestic law impediments or problems to a nation’s domestic
implementation/incorporation is not a valid defense/reason for the country’s
failure to adhere to its international law obligations (and the specific obligation to
implement and incorporate the rules domestically). That is, it is a long standing rule
of public international law that a nation-state may not invoke its internal laws (or
legal restrictions on implementation) as a justification for its failure to perform its
international law obligations. This is clearly delineated in Articles 27 and 46 of the
Vienna Convention on the Law of Treaties, and widely accepted as a cornerstone
principle of international law. Also, another main feature of these treaties is the
inclusion of the “no safe haven for terrorist” rule, which requires that countries
that have located suspected terrorists within its territory must either prosecute
the individual for wrongdoing or extradite the individual to a country which will
prosecute. The failure to honor this clause can lead to sanctions and other Security
Council enforcement actions, as Libya experienced when it failed to adequately
prosecute or turn over to a third country the culprits responsible for the bombing of
Pan Am flight 103 over Lockerbie, Scotland, in 1989. It took Libya approximately
a decade to turn the individuals over for trial, after ten years of extensive sanctions
imposed by the Security Council for non-compliance with the “no safe haven for
terrorist” rule.
For nations that fail to fulfill their obligations under treaties or customary
international law in regards to terrorism, international law provides the possibility
of other sanctions imposed upon that nation state by the other countries through
the international law practice of horizontal enforcement. That is, rather than the
law and international obligations being enforced/imposed on nations by some
supranational executive or law enforcement institution (i.e., vertical enforcement),
international law is largely enforced between nation-states as relative equals under
the notion of horizontal enforcement. As such, a country which fails to fulfill its
obligations (as was the case with Libya) could face a bevy of different actions by
 International Law Components 155
other nations, including such things as sanctions, reciprocity (i.e., other nation’s do
not honor a particular obligation owed to the breaching country), loss of good will
and international capital, et cetera.
Of course, within the realm of public international law, UN Charter and UN
institutions also provide some guidance and obligations in combating terrorism. The
United Nations has most notably responded to the plague of terrorism both through
Security Council action, and via the formulation of multi-lateral treaties dealing with
terrorism. First, in illustration of Security Council actions in regards to terrorism, the
Security Council’s action in passing Resolution 1373 was a positive step in combating
terrorism, passed shortly after 9/11 on September 28, 2001. The resolution, passed
under Security Council power under Chapter VII of the United Nations Charter,
consolidates many provisions from a variety of treaties and conventions dealing
with terrorism, and makes the provisions immediately enforceable on all countries.
Resolution 1373 mandates that countries change their domestic laws to achieve the
following aims:

1. Prevention of the financing of terrorism, through, inter alia, freezing of the

financial assets or economic resources of persons who commit, or attempt
to commit, terrorist acts or who participate or facilitate the commission of
terrorist acts;
2. Establishment of terrorist acts as serious criminal offences in domestic laws
and regulations, with commensurably serious punishment; and
3. Taking appropriate measures before granting refugee status to ensure that the
asylum seeker has not planned, facilitated, or participated in the commission
of terrorist acts.

The Resolution also created a new UN organization, the Counter-Terrorism

Committee (CTC), which oversees the application of Resolution 1373 and monitors
the various countries to ensure compliance and implementation of Resolution 1373.
To the dismay of many international human rights organizations, Resolution 1373
“makes no positive reference to a member states’ obligations to respect international
human rights, humanitarian, or refugee law,” and the CTC has failed to “integrate
consideration of human rights into its work” (Human Rights Watch, 2004). Another
example of Security Council enforcement of terrorism obligations on the international
plane (and in part a reflection of the above human rights pressure) can be seen
with its enactment of Resolution 1456 on January 20, 2003, which states in part as
follows: “States must ensure that any measure taken to combat terrorism comply
with all their obligations under international law, and should adopt such measures in
accordance with international law, in particular international human rights, refugee
and humanitarian law.”
According to the UN Charter, all nations must honor and follow Security Council
resolutions. Thus, under international law, Security Council resolutions are binding
on all countries, and a country’s failure to adhere to a Security Council resolution
represents a clear breach of international law. This is clearly delineated in Article
156 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
25 of the United Nations Charter (itself a treaty obligation of all countries) which
specifies that “the Members of the United Nations agree to accept and carry out the
decisions of the Security Council in accordance with the present Charter.” Article
2(5) of the Charter also requires that all nations “shall give the United Nations
every assistance in any action it takes in accordance with the present Charter, and
shall refrain from giving assistance to any state against which the United Nations is
taking preventive or enforcement action.” Thus, in the first Gulf War in 1990-1991,
which was a proper enforcement action approved by the Security Council under
Chapter VII of the Charter (the unilateral U.S. invasion in 2002 was not pursuant to
enforcement actions under the UN Charter), no other country could (or did) come
to the aid of Iraq and Saddam Hussein, despite his pleadings to the contrary. If
a country does violate its obligations (as Hussein did leading up to the first Gulf
War), the Security Council first should seek a pacific resolution under the terms and
provisions of Chapter VI of the UN Charter, including the utilization of such tactics
as negotiation, mediation, arbitration, and failing that, sanctions and other measures
of a non-violent nature. Once these means have been exhausted, and if the Security
Council then determines that the country’s non-compliance represents a “threat to
the peace, breach of the peace, or act of aggression” under Article 39 of the Charter,
the Security Council can then authorize the use of force as a means to “maintain or
restore international peace and security.” The first Gulf War was authorized by the
Security Council pursuant to Article 39. When the Bush administration could not
get the affirmative votes of the needed members of the Security Council in 2002, it
bypassed the UN Security Council and decided to use force unilaterally under a very
broad interpretation of Article 51 of the UN Charter (see Chapter One), which has
subsequently been dubbed “the Bush Doctrine.”
As far as the many resolutions passed by the General Assembly are concerned,
such resolutions have largely symbolic effect/impact, as General Assembly
resolutions are not binding on nations as a matter of international law. The UN Charter
makes this clear in Article 10 in discussing the powers of the General Assembly,
and specifies that “the General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers and functions of any
organs provided for in the present Charter, and…may make recommendations to the
Members of the United Nations or to the Security Council or to both on any such
questions or matters.” Thus, while UN General Assembly Resolutions on terrorism
may sound nice, and certainly have symbolic import, they do not set forth any rigid
obligations or rules. Likewise, rulings of the International Court of Justice (ICJ) on
terrorism related issues are not binding on all nations, as under the Statute for the
International Court of Justice, it specifies that rulings by the ICJ lack precedence
that common law systems afford rulings under the principle of stare decisis. Also, to
the extent it issues an advisory ruling when requested by the General Assembly or
Security Council (for example, as it did with Israel and the legality of its fence/wall),
the rulings are not binding.
Some argue that the adherence to international tribunals and to international
law should be the primary way in which terrorism is combated. However, as noble
 International Law Components 157
as such a sentiment sounds in theory, international courts like the ICJ or the ICC
(discussed below) are thus far too ineffective to deal with the problems of terrorism.
The ICJ, in addition to the limitations noted above, is also significantly limited
by the fact that the court may only hear challenges and disputes involving nation
states as parties to the case. As such, individuals like Osama bin Laden, or terrorist
networks, such as al-Qaeda, cannot be brought in front of the ICJ for adjudication or
prosecution. Additionally, even if there were an issue of state-sponsored terrorism, a
country cannot be brought in front of the ICJ as a defendant unless it had previously
rendered its consent to the compulsory jurisdiction of the court pursuant to the terms
of the Statute of the International Court of Justice (under Article 36). Indeed, as of
July 1998, only 72 states (out of the roughly 190 nations that comprise the UN)
had made declarations under Article 36 of the Statute of the International Court of
Justice accepting compulsory jurisdiction of the Court—12 of which have expired
or been cancelled or terminated by the nation (Beckman, 2004). Countries have also
withdrawn its consent to ICJ jurisdiction. The United States itself did so in 1986
after losing a case in the ICJ entitled Nicaragua v. United States (Case Concerning
Military and Paramilitary Activities In and Against Nicaragua, 1984 I.C.J. Rep.
392). Finally, in regards to the ICJ, the ICJ is little utilized—at least according to its
first half century in operation. That is, from 1945-1995, the ICJ has only rendered
60 judgments, issued 77 substantive orders and 21 advisory opinions—which is, on
average, about 3-4 orders or judgments per year (Janis, 2004).
What is the history of dealing with “terrorism” and individual accountability on
the international plane? One could argue that the Nuremburg Tribunal following
World War II, along with the ad hoc tribunal for the former Yugoslavia and the
tribunal for Rwanda, and the modern International Criminal Court (ICC) all have
dealt indirectly with cases pertaining to “terrorism.” The ad hoc tribunals were
empowered to handle cases involving crimes against humanity—such as genocide,
ethnic cleansing, and systematic rape. However, to date, these courts have been very
time consuming, expensive, and ultimately, not the most effective and expeditious
way of dealing with individual terrorists.
The International Criminal Court (the ICC) might, at least in the future, be an
option in handling terrorist suspects and cases (instead of as combatants in the
“war on terrorism”—as done by the United States, or via the domestic criminal
justice system—as done by Germany, for example). However, at present there are
several notable problems with the utilization of the ICC as a viable alternative to
prosecuting terrorism cases. First and foremost, at present, the ICC’s jurisdiction
does not include cases pertaining to terrorism. Thus, even if someone as nefarious as
Osama Bin Laden were apprehended and delivered to the ICC, the ICC would not
have the authority or power to handle the case. At present, the jurisdiction of the ICC
includes the following types of crimes: 1) genocide; 2) crimes against humanity; 3)
war crimes; and 4) the crime of aggression.
The second reason why the ICC does not appear to be a robust option at this point
is because of the United States opposition and attacks on the ICC and its credibility.
Despite the fact that the United States was instrumental in the early development of the
158 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
ICC, that the United States has long pushed for individual international accountability
going back to the Nuremburg Tribunal in the 1940s, and that many concessions were
granted specifically to the United States to ensure its accession to the ICC (such as
giving the Security Council a temporary veto over cases to be referred to the ICC
and even a Security Council resolution “extending temporary immunity from the
court’s jurisdiction to America’s U.N. peacekeepers”) (The Economist, 2002), the
United States has refused to participate in the ICC. However, not only has the U.S.
refused to participate or support the ICC, the Bush administration on May 6, 2002,
stated that it was “renouncing U.S. signature on the treaty” (Human Rights Watch,
2002) (signed during the waning days of the Clinton Administration in 2000), a
move that was largely unprecedented under public international law. Since 2000,
the United States has also entered into a large number of bilateral treaties with other
countries basically exempting the United States and its troops from possible ICC
jurisdiction. Finally, in domestic legislation that many have stated illustrates the
high of American hubris, the Republican controlled Congress in 2002 passed (with
President Bush’s approval and signature) the American Servicemembers Protection
Act. The American Servicemembers Protection Act “authorizes the use of military
force to liberate any American or citizen of a U.S.—allied country being held by
the court.” Some have therefore derisively referred to this legislation as the “Hague
Invasion Act.”
The United States position in regards to the ICC weakens any chance of the ICC
playing a major role in the fight against terrorism. First, even if the ICC’s jurisdiction
were amended to include acts of terrorism, given the U.S. hostility and antipathy
to the ICC, it is very unlikely that the United States would send individuals it has
in custody to the ICC. Second, other countries, not wishing to lose political capital
or financial benefits of a close relationship with the United States, would also be
unwilling to shuttle suspects to The Hague for trial. Third, the current U.S. course
of treating suspects as combatants in the global “war of terror” is not consistent
with how the ICC would operate in such cases. Finally, at a minimum, it has been
argued by a former Nuremburg Trials prosecutor (Benjamin Ferencz) that the U.S.
objections to the ICC “conveys indifference towards some of the worst crimes
known to mankind [and] foolishly promotes further isolation from our friends and
neighbors.” Perhaps worst of all, according to Ferencz, the United States’ position
“signals to the world that America is turning its back on decades of U.S. leadership
in prosecuting war criminals since the Nuremburg trial” and it “seriously undermines
the essential alliances forged in the war against terrorism…” (Fereccz, 2002).
Indeed, this is a view now articulated amongst the European allies, that “Bush is now
actively seeking to replace six decades of a flawed but workable system of treaties,
conventions, and other global rule making procedures with American realpolitik and
diktat” (Hoagland, 2003).
However, even if the jurisdiction of the ICC would be amended to include
terrorism (as it likely will be amended within the next several years), and the United
States drops its ongoing criticisms to the court (which is not likely in the immediate
future), the handling of terrorism cases would still be a brutally slow process. This
 International Law Components 159
has been illustrated by several recent high profile attempts to hold individuals liable
in international tribunals for certain violations of international law. For instance, in
the terrorist attack directed at Pam Am 103, causing the plane to explode over the
skies of Lockerbie, Scotland, in 1989, and which was the biggest terrorist action
directed at U.S. citizens prior to September 11, 2001, it ultimately took over a
decade to bring the Libyan suspects to trial in an ad hoc tribunal set up for the
express purpose of trying these individuals. Even after the decade it took to secure
the defendants from Libya, the trial cost millions of dollars, and was a very slow
process. Another example (and perhaps the worst example) illustrating how dilatory,
methodical, and potentially ineffective an international court trial can be is found in
the prosecution of Slobodan Milosevic for crimes against humanity. Milosevic, on
trial for crimes against humanity and the murders of thousands of individuals as part
of his campaign of ethnic cleansing, has been arguing his case now for several years.
Again, despite strong evidence of guilt, Milosevic delayed his trial for years, until
ultimately dying in his prison cell, literally years into the prosecution of his case.
As this author wrote previously on this subject, “while the wheels of international
justice slowly turn, terrorists remain at large—able to commit or support acts of
violence against other innocents. International tribunals (such as the ICJ and the
ICC) are simply not evolved to such an extent that they are sufficiently mature as
institutions and able to serve as effective counterterrorism tools” (Beckman, 2004).

Regional Treaty Alliances

Regional treaty alliances, like the North Atlantic Treaty Organization (NATO) or
the European Union (EU), offer additional supranational options and support when
dealing with terrorism. For instance, in the months following 9/11, NATO invoked
the mutual collective self defense provision (Article 5 of the Defense Treaty), arguing
that an attack on the United States is an attack on all NATO members. Article 5 of the
NATO treaty provides as follows:
The Parties agree that an armed attack against one or more of them in Europe or
North

America shall be considered an attacked against them all and consequently they agree
that, if such an armed attack occurs, each of them, in exercise of the right of individual
or collective self-defense recognized by Article 51 of the Charter of the United Nations,
will assist the Party or Parties so attacked by taking forthwith, individually and in concert
with the other Parties.

At a NATO Summit meeting in Washington, DC, in 1999, the issue of terrorism was
specifically addressed in conjunction with NATO obligations amongst the members.
At that time, it was decided to switch terrorism from an action that was traditionally
considered as part of a country’s domestic criminal system, to an action that could
be classified so as to constitute an “armed attack,” so long as the damage caused
by the act fell “within the geographic scope covered by the NATO treaty” and that
160 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
the attacks were “directed from abroad.” Specifically, Article 24 of the Washington
summit agreement specified that Article 5 would be implicated even beyond armed
attacks by other countries, and expressly included international acts of terrorism.
Indeed, in light of this previous understanding, it took the representatives only two
meetings (spanning roughly thirty hours) to agree that these conditions were met
on 9/11 and to invoke for the first time in NATO’s history the “mutual defense”
obligations contained in Article Five, contingent on the attack been launched from
beyond U.S. shores. In the days after 9/11, NATO planes operated in United States
airspace.
Even the European Union has developed a new legal framework in dealing with
acts of international terrorism to any of the members of the EU. In 2004, about the
time the draft constitution was first put forward, the EU put forth an operational
definition of terrorism as the “destabilizing or destroying the fundamental political,
constitutional, economic or social structures of a country.” The EU has vowed to
combat this destructive force, both through EU measures, as well as cooperation
among the EU members by having all EU members accede to the Council of Europe’s
Prevention of Terrorism Convention, and ensure adequate domestic incorporation of
the principles contained in this convention. The draft constitution for the EU also
contained a set of rules regarding for how the EU as a whole should be handling the
issue of terrorism. While the draft constitution was not ratified by the members of
the EU in the summer of 2005, it nonetheless contains a summary of the basic rules
and policies that are largely already in place through the various constitutive treaties,
as well as secondary EU laws such as EU Directives and Regulations. The draft
constitution also reflects the thinking of many European diplomats and EU leaders
on the issue of terrorism and how the EU should respond to the issue/problem.
Thus, a quick review of the draft constitutional provisions on terrorism is helpful in
understanding how the EU approaches the issue. First, under Article III-257(3), the
EU “shall endeavour to ensure a high level of security through measures to prevent
and combat crime, racism and xenophobia…” In so doing in response to terrorism
and its financial support, Article III-Article 160, specifies that “where necessary
to achieve the objectives set out in Article III-257, as regards preventing and
combating terrorism and related activities, European laws shall define a framework
for administrative measures with regard to capital movements and payments, such
as the freezing of funds, financial assets or economic gains belonging to, or owned
or held by, natural or legal persons, groups or non-State entities.” Article III-271 of
the constitution would mandate that all countries harmonize their laws concerning,
among other things, terrorism and organized crime. Article 271 specifies that the
EU “may establish minimum rules concerning the definition of criminal offense and
sanctions in the areas of particularly serious crime with a cross-border dimension
resulting from the nature or impact of such offences or from a special need to
combat them on a common basis. These areas of crime are the following: terrorism,
trafficking in human beings and sexual exploitation of women and children, illicit
drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting
of means of payment, computer crime and organized crime.” Further, under Article
 International Law Components 161
271(2), these serious areas of crime could be subject to the harmonization or
“approximation,” meaning all countries would have to implement laws of a similar
nature. Additionally, the constitution lays out procedures for the “common security
and defence policy” of the EU in Article III-309 through Article III-311. For instance,
in Article III-309(1), the EU is authorized to “use civilian and military means,…
[including] joint disarmament operations, humanitarian and rescue tasks, military
advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of
combat forces in crisis management…to the fight against terrorism, including by
supporting third countries in combating terrorism in their territories.”
Another relatively new counter-terrorism feature within the EU is the EU arrest
warrant, which is applicable throughout Europe without having to worry about
satisfying the domestic requirements of any given nation within the EU. The chief
benefits of the Europe-wide arrest warrant are that extradition times are much shorter
and that there is a mutual and uniform recognition of the warrants (i.e., the warrants
are no longer country specific, which led to delays and jurisdictional problems/issues
in some cases). EU provisions regarding terrorism also allow for “an EU public
prosecutions agency, an EU mechanism for freezing suspects’ assets, examination
of immigration and asylum laws, and a mechanism to prosecute computer crime”
(Wu, 2004).
Another dimension of the supranational law within Europe that must be
considered is the European Convention of Human Rights and the European Court
of Human Rights. This convention delineates a host of civil liberties and individual
rights that are to be protected by signatory countries. While countries may derogate
from a provision based upon urgent situations within the country, it is not often
done. Indeed, at present, and since 2001, the U.K. has been the only country of the
45 member states/countries that comprise the Council of Europe to have decided it
was necessary to derogate from the ECHR (specifically Article 5). Parenthetically,
the U.K. is also the only country of the approximately 160 signatory countries of the
International Covenant of Civil and Political Rights (ICCPR) to have derogated from
Article 9 of the ICCPR. Indeed, the U.K. and the U.S. stand alone in their attempts at
the indefinite detention of foreign nationals suspected of terrorism after 2001.
In addition to the Council of Europe’s Prevention of Terrorism Convention
referenced previously, the Council of Europe also has promulgated Guidelines on
Human Rights and the Fight Against Terrorism on July 11, 2002. The Council of
Europe’s Guidelines are premised upon the notion that States have the foremost
responsibility to protect its population against the loss of life, and this is perhaps
the greatest of the human rights—the right to be protected against terrorist acts and
the loss of life. However, the Guidelines also recommend limits to Government
actions to protect life against terrorist attacks, and specify that Governments are still
under the obligation to ensure that there is a respect for human rights and to honor
all domestic and international obligations in regards to such. As such, even though
the Governments have a paramount duty to act to protect human rights, it should
do so, for example, without usage or reliance on torture, arbitrary actions, and the
rescission on the right to a fair trial.
162 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
International Law Enforcement Organizations

Interpol is considered the largest police organization in the world, spanning 181
member countries. However, it lacks any enforcement authority, and rather serves
as a conduit for information between various countries, often times to locate a
suspect. Additionally, Interpol will analyze information and provide data and/or
leads to member states. For example, after 9/11, Interpol sent up the 11 September
Task Force, charged with coordinating and collecting the receipt of information,
and to quickly forward that information to the Interpol National Central Bureau in
Washington, DC, which in turn was sent to the FBI.
Germany, being displeased with the operation of Interpol in the 1970s, pushed
for a uniquely EU institution, which finally came to fruition in the Maastricht Treaty
in 1993, with the creation of Europol (European Law Enforcement Organization).
Europol supports the various national law enforcement agencies against terrorism and
provides strategic reports (called “threat assessments”). Europol also provides experts
and technical assistance in investigations within the EU. The draft EU constitution
(Article III-276) defined Europol’s mission to “be to support and strengthen action
by the Member States’ police authorities and other law enforcement services and
their mutual cooperation in preventing and combating serious crime affecting two or
more Member States, terrorism and forms of crime which affect a common interest
covered by a Union policy.”
However, at present, Europol lacks in executive authority/figure. At the current
time, Europol is largely a conduit and repository for information, as opposed to an
independent law enforcement agency with investigation and arrest authority. Indeed,
the draft constitution made clear that Europol should maintain the collection and
storage of centralized information unit where national police forces can retrieve
information and intelligence. Article III-276(3) specifies that “any operational action
by Europol must be carried out in liaison and in agreement with the authorities of
the Member State or States whose territory is concerned. The application of coercive
measures shall be the exclusive responsibility of the competent national authorities.”
However, Europol does not enjoy the complete faith and confidence of many EU
countries. Thus, for example, every country sent one terrorism expert to the Europol
after 9/11. These experts were charged with examining data/evidence in order to
create a situation terrorism report for Europe as a whole. However, roughly 80% of
data reported to the new Europol Terror Analysis Databank is said to have originated
from Germany and the efforts of German domestic law enforcement. This has led
several to skepticism as to Europol’s effectiveness.
 Chapter Nine

The Current Status of Homeland Security

Despite the United States strength in the world as a major world power and arguably
the only “super power,” it is a relative neophyte among many other nations in
the world in defending the homeland against the threat of terrorism. The United
States largely began its modern campaign against terrorism after the horrific attacks
occurring on September 11, 2001. However, countries such as the United Kingdom,
Spain, Israel, and Germany, have been dealing with the plague of terrorism for
decades. Furthermore, each of these other countries have been the target of post
9/11 terrorist attacks in their own territory, and therefore, each has had to recalibrate
and justify their existing laws and approaches as effective and prudent in combating
the viral actions of terrorists. For instance, in the U.K. Prime Minister’s Countering
International Terrorism Report submitted to the U.K. Parliament in July 2006, the
Blair administration references this comparative approach. According to the report,
the U.K. “strategy for dealing with terrorism has evolved over many years in the light
of experience…it incorporates the lessons from dealing with Irish terrorism over
some 30 years [and] it was renewed following the 9/11 attacks in the USA…and it
was looked at again following the 7 July 2005 attacks” (Her Majesty’s Government,
2006). Therefore, those in the United States would do well to cast their glance
outside the U.S. mindset and learn from these other countries in their practices
and experiences in the war on terrorism—in how these countries have approached
the issue of homeland security through both their domestic laws and international
actions.
Perhaps most significantly, the U.K., U.S., Russia and Israel have opted to frame
the issue largely as a global war on terror, while Spain, Japan, and Germany have
approached the plague of terrorism as largely another societal problem suitable for
resolution per its domestic criminal laws and process. Thus, the former countries
listed above have approached the threat of terrorism after 9/11 in a two-fold manner,
namely the strengthening of domestic laws, while at the same time using the military
to strike at terrorist threats abroad as part of a nebulous “war” on terrorism. The
attitude of the U.S. (as reflected by the current Bush administration), for instance,
is to treat all suspected terrorists as “enemy combatants” in an unlawful global
war, rather than as criminal defendants entitled to a day in court, a presumption of
innocence, and other due process considerations. As President Bush explained in his
January 20, 2004, State of the Union address:

I know that some people question if America is really in a war at all. They view terrorism
more as a crime, a problem to be solved mainly with law enforcement and indictments.
164 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
After the World Trade Center was first attacked in 1993, some of the guilty were indicted
and tried and convicted, and sent to prison. But the matter was not settled. The terrorists
were still training and plotting in other nations, and drawing up more ambitious plans.
After the chaos and carnage of September the 11th, it is not enough to serve our enemies
with legal papers. The terrorists and their supporters declared war on the United States,
and war is what they got.

This statement by President Bush reflects the belief by his administration that
“normal” domestic laws are insufficient to adequately combat and protect against
the threat of terrorism. This can be contrasted with many countries that have been
combating terrorism for years as a serious, but not fatal, domestic problem. According
to Professor Tom Blau of the National Defense University, “everyone recognizes
the risk that radical Islam and terrorism pose to security, but the United States sees
this as an existential challenge, while Europeans see it as one more problem to be
handled among the others they face” (Tigner, 2006).
Additionally, by labeling the threat of terrorism as a “war,” the U.S. and Russia,
for example, have tended to give its executive more and more power in this regard.
President Bush has slowly asserted more and more presidential power to conduct a
broad “war on terror” under the theory of the unilateral presidency, and the very broad
interpretation of the President’s power to be “commander-in-chief” of the armed
forces under Article II of the Constitution. As Yale Law Professor Bruce Ackerman
has written, “calling it a ‘war’ on terrorism encourages presidential warmaking
abroad and judicial abdication at home” (Ackerman, 2006). In regards to Russia, in
March 2006, it passed new anti-terrorism measures which, in part, greatly augment
the powers of President Putin to use the military and the federal security forces to
conduct terrorist operations abroad. The trend in “unilateral executive powers” in
both the United States and Russia is also acerbated by the lack of real legislative
checks by an opposition party, at least during the Bush and Putin regimes. Further, at
least in the United States, courts are not inclined to interfere with executive decisions
made in time of war.
While the U.K. has not been as forceful in asserting that military forces should
always be used to combat the threat of terrorism, the U.K. has nevertheless been
the strongest ally (and participant) on the global war on terrorism which has taken
place largely in Afghanistan and Iraq. Furthermore, the U.K. has officially stated that
“the Government has declared itself willing to use military force in accordance with
international law for counter-terrorism purposes when non-military tools cannot
achieve its goals” (Her Majesty’s Government, 2006). While there are several
advantages to this approach—such as deploying formidable military assets abroad
and keeping “the war” away from the country’s “home front,” it does come at a
high cost, both in terms of lives lost and financial cost to the nation. Furthermore,
many have cogently argued that the long term use of troops abroad—even if legally
permissible to do so under the country’s own laws—stirs up new generations of
potential terrorists who view the country’s presence in their region as similar to
being under the yolk of a foreign army.
 The Current Status of Homeland Security 165
This foregoing approach of deploying military assets abroad in the war on
terrorism can be contrasted with the approach of countries such as Germany, Japan
and Spain which have opted to frame the threat of terrorism largely as a problem of
domestic laws which can be remedied through the proper administration of domestic
criminal laws and domestic procedure. While Spain was an early partner/ally of the
U.S. and provided military troops in support of the global war on terrorism, Spain
removed its troops from Iraq shortly after experiencing the Madrid train bombing
attack in March 2004. Since that time, Spain has largely combated terrorism through
its domestic laws and the actions of its National Court—the court vested with the
power and jurisdiction to adjudicate terrorism related cases. In light of the fact that
one of the stated goals of the terrorists who participated in the Madrid train bombings
was to effectuate a change of governments in Spain (which occurred within a week of
the attacks) and a pull-out of Spanish troops from Iraq (which occurred within several
weeks of the attacks), many have accused Spain of being “weak on terrorism” and
caving in to the pressures and demands of al-Qaeda. While the topic as to why Spain
withdrew its troops and whether it was a wise thing to do is subject to debate, the
withdrawal does not necessarily mean that Spain is “soft” or “weak” on terrorism.
One author recently alleged as such, simply because Spain had decided to re-frame
its approach to terrorism as a matter of domestic law. However, even though Spain
now handles terrorism cases as a matter of domestic law, the Spanish National Court
has been very active in pursuing suspected terrorists. Since 2001, Spanish judges
have indicted hundreds of suspected terrorists and Spain leads the list of countries in
aggressively prosecuting individuals in its domestic court system.
Germany and Japan have also not accepted the use of the military abroad as an
acceptable way in which to combat terrorism, although both countries are largely
restricted by constitutional provisions which denounce the use of military force and
military acts of aggression abroad. Interestingly, the United States played a significant
role immediately following World War II in the formulation of the constitutions in
both Germany and Japan. In playing such a significant influence, many have argued
that the United States is largely responsible for the constitutional limitations in play
in both Germany and Japan, as the United States did not want to see a military
resurgence in either of its World War II adversaries in the decades following the end
of World War II. Ironically, today, Germany and Japan cannot be full participants in
the military “war on terror” abroad in large part based upon constitutional limitations
that the United States insisted on in the late 1940s. However, in addition to the
constitutional limitations, the citizenry of both countries are also “reluctant to allow
any role for its armed forces beyond national defense” (Tigner, 2006).
There is also divergence among the various countries in the utilization of the
military domestically as well. Russia, Israel and, to a lesser extent, Spain, allow
for the use of military forces in anti-terrorism operations within the country. Russia
utilizes military special operations forces to deal with terrorist attacks, as was seen
when terrorists took the occupants of a Moscow theatre hostage in 2003 and during
the Beslan school crisis in 2004. In both cases, Russian Special Forces were brought
in to deal with the situation. Russia’s new anti-terrorism laws, adopted in March
166 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
2006, give clear-cut authority to the President to deploy regular armed forces to deal
with terrorist situations occurring within the country. In Israel, given its mindset of
being consistently under attack, the use of military in domestic policing actions is
viewed as commonplace. Israel has largely merged its domestic police powers with
that of its military, and the use of military in domestic policing actions is viewed
as commonplace in light of the specter of terrorism. In addition to its robust and
frequent use of military force in apprehending and deterring terrorists, prior to 1980,
those convicted of violating the terms of its Prevention of Terrorism Ordinance
were even tried by a military court. Finally, in Spain, a third of its law enforcement
structure is comprised of military members, perhaps analogous to the National
Guard in the United States. The use of the military domestically can be contrasted
with the practices of the U.S., U.K., Japan, and Germany, which largely deny the
practice of utilizing the military domestically. In the United States, for example,
statutory law (the Posse Comitatus Act) forbids the use of military forces, unless
specifically approved by Congress (or otherwise allowed by the U.S. Constitution).
However, as was also discussed in Chapter One, the Bush administration has argued
that it can use military forces domestically if it chooses, so long as it is pursuant to
the President’s powers as Commander-in-Chief. Thus, in this vein, in May 2006,
President Bush called for the use of military members to guard the southern border
with Mexico. He also called for a fence along the southern border similar to that
erected by Israel along the West Bank.
The various countries can also be contrasted based upon whether or not it
adheres to a centralized or decentralized law enforcement structure. The U.K., Israel,
Japan, and Spain utilize a centralized law enforcement structure, while the United
States, Russia and Germany employ a decentralized structure. The chief benefit of
a centralized law enforcement system is that all of a country’s law enforcement
resources are directed to one institutional entity, and this single entity enjoys
controlling all of the intelligence regarding potential terrorist investigations. Thus,
unlike in the United States (and especially unlike the U.S. prior to 9/11), there are
fewer problems with the collection and analysis of intelligence information (or
failing to “connect the dots”). As one Florida police officer commented, “in Israel,
there is a national police force, making it easier to cut through the bureaucracy
and allow information about suspects to move faster” than in the United States
(Fooksman, 2006). One of the major criticisms of the United States prior to 9/11 was
that, even among federal law enforcement, the various law enforcement agencies
had overlapping and competing jurisdictions, and intelligence did not properly flow
from one agency to another. With a centralized and integrated policing structure, this
problem is minimized. Furthermore, with a centralized structure, there is a uniform
level of training and competency, which presumably exceeds the requirements
imposed by many decentralized systems at the lower echelons (i.e., municipal
and local police forces). However, centralized policing systems are criticized for
being more susceptible to corruption and abuse of power. That is, with a centralized
monolithic system, corruption and abuse of power from within can become a fatal
flaw, as there exists no competing law enforcement structure that can act as a check.
 The Current Status of Homeland Security 167
Thus, while a decentralized policing force may incur duplicative costs and be less
efficient with the handling of investigatory matters and intelligence, its chief benefit
would be in serving as a check and balance against corruption. That is, maintaining
competing law enforcement agencies allow each to serve as a check on the other,
and that, according to Reichel, the “public feels more secure knowing two separate
forces keeping each other in line and working to guarantee civil liberties” (Reichel,
1999).
For those countries that employ a decentralized system, it is largely maintained
due to constitutional and legal considerations, and not necessarily based upon an
analysis of which leads to a more efficient, effective and well-regulated policing
force. For example, as discussed with Germany, the maintenance of local and
regional police forces (in a decentralized system) is largely based upon constitutional
dictates which seek to avoid a national police force as was in place and abused
during the ascendancy of the Nazi party in Germany. In the United States, a
decentralized system is maintained in part due to constitutional considerations and
notions of federalism (as the general policing power was left to state governments
under the Tenth Amendment to the Constitution), as well as in statutory laws (as the
Posse Comitatus Act—which ended federal policing in the Southern United States
following the Civil War). Second, it has been argued that in a country as large as the
United States, multiple local police forces make sense—and allow for policing in
areas that otherwise would not be given proper attention or resources by the federal
government.
Many of these countries have additionally passed similar legislative measures to
strengthen the ability of the government to investigate and respond to terrorist threats
after 9/11, or similar terrorist attacks in their own countries. Many of the countries
(including the U.S., U.K., Germany, and Russia) have revised their legal definition
of terrorism to include all direct and indirect levels of participation and support.
Each of the above referenced countries rushed to enact legislation after 9/11—and
as in the case of the U.S., the U.K. and Germany—laws were passed within days
after being the target of a terrorist attack. According to Yale Law Professor Bruce
Ackerman, this knee jerk/visceral reaction could very well lead to a “downward
cycle” whereby “after each successful attack, politicians will come up with a raft
of repressive laws that ease our anxiety by promising greater security—only to
find that a different terrorist band manages to strike a few years later.” Thus, “each
major attack will breed further escalations of military force, police surveillance,
and repressive legislation. The cycle of terror, fear, and repression may spin out of
control…” (Ackerman, 2006).
Professor Ackerman calls for an emergency set of laws “that allows for effective
short-term measures that will do everything plausible to stop a second strike—but
which firmly draws the line against permanent restrictions.” The problem with this
proposed solution is that planned terrorist attacks (like those that occurred on 9/11)
often takes years to formulate and plan—and that country would have to continuously
claim to be in a state of emergency to give law enforcement heightened powers
to avoid future threats. Giving law enforcement increased surveillance powers, for
168 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
example, for a period of 60-90 days, will not adequately prevent long term terrorist
plans that might take years to develop. For those countries that have seen the need to
pass new laws following an attack, a more realistic alternative might be to emulate
the approach of the U.K., that has made many of the laws subject to expiration/sunset
and subject to yearly review and analysis. Thus, there can be a continuous debate in
the country as to whether the increased police powers and decreased civil liberties
continue to be justified and merited. If the citizens of a country decide that this
should be the case, the elected representatives can affirmatively renew the laws in
question. If not, the laws will expire. Additionally, requiring that the laws are subject
to an annual review and analysis (like that conducted in the U.K.), not only forces
governments to justify why said laws are needed and are working, but also provides
“transparency” in government. This approach can be largely contrasted with the
approach of the U.S., which in the five years following 9/11, has permanently enacted
a variety of different laws with little to no annual oversight and/or transparency as
to effectiveness of the laws.
Countries have also determined it necessary to expand the legal definition of
terrorism since 9/11 to cover the new forms of terrorism embodied in radical groups
such as al-Qaeda, while others have not. For instance, Japan and Israel have not
defined terrorism as a separate offense, while the U.K. has had a statute definition
of terrorism since the promulgation of its Prevention of Terrorism Act in 1989. Prior
to 2001, the United States did not have a universal definition of terrorism applicable
across the board in the United States, but rather allowed individual federal agencies
to define the term as it wished for its agency’s purpose. However, after 2001, the
United States, as part of the Patriot Act, did amend federal law to specifically create
and define the offense of terrorism. Spain stands unique in taking a passive approach
after its 3/11 in March 2004. Specifically, Spain has not sought additional police
powers since 2004, which many commentators have suggested shows a weakness
to the fight to curtail terrorism. However, as has been pointed out, one can argue
with equal force that Spanish laws need no further augmentation in this regard and
its National Court is very active in terrorist related prosecutions. Additionally, one
should not immediately conclude that inaction equates to the unsuccessful handling
of the problem. Finally, being subject to repeated and consistent attacks since 1948,
Israel continues to rely on its Prevention of Terrorism Ordinance, which it enacted
shortly after its creation as a modern nation-state in 1948.
An additional trend/tool utilized in many of the countries is the use of
“administrative detainment” or subjecting terrorist suspects to detention without (at
least initially) the right to counsel or a hearing. If one excludes the detainment of
“enemy combatants” by the United States, or the United States “material witness”
statute which also can provide for long detainments without trial or charges, of the
countries analyzed, Russia allows for the longest period of detainment without trial
for terrorist suspects—up to 30 days. Russia had revised its laws in this area to
increase the maximum period of detainment from 10 to 30 days in 2004. The United
Kingdom has also significantly increased its detainment period (without charge or
trial) in 2005 to up to 28 days. Had Tony Blair’s original proposal passed Parliament,
 The Current Status of Homeland Security 169
the U.K. would have allowed for detainment up to 90 days—unparalleled among
western democracies. Germany and Spain allow for detainment as well, albeit
for shorter period of time than the U.K. or Russia. Spain, for instance, allows for
detainment of up to 5 days without charges or communication with legal counsel.
Provisions allowing for detainment of terror suspects without charges are one of
the main ways in which domestic terrorism laws are being revised after 9/11. Law
enforcement claims that it needs time to interrogate the suspects before they “lawyer
up” and shut up.
Another modern trend in domestic terrorism laws has to do with offenses which
criminalize speech which has the tendency to praise or glorify terrorism or acts of
terrorism. Within Europe, the impetus for the trend in part is due to the Council of
Europe’s Prevention of Terrorism Convention, which has an article which specifies
that nation-states/signatories to the convention have an obligation to amend
their domestic laws to outlaw and prohibit speech which is intended to advocate
recruitment or material support of terrorist organizations. Thus, the U.K.’s much
ballyhooed “glorification of terrorism” provision enacted in early 2006 was in keeping
with the U.K.’s obligations to pass such a provision under the Council of Europe’s
Convention on the Prevention of Terrorism. Russia, acceding to the Convention
in 2006, has also amended its laws to provide as such. Germany has had such a
provision in its penal code long before the convention and the modern movement to
criminalize such speech—specifically since the 1960s. Of all the countries analyzed
in the foregoing pages, Israel has gone the farthest in the criminalization of speech,
and has also had such a provision since 1948, making it the oldest of the various
provisions dealing with speech and terrorism. Israel’s law even criminalizes the use
of well-known symbols which are associated with terrorist organizations/groups. As
discussed in Chapter One, this is one area where the United States is constitutionally
prohibited from adopting a similar approach, largely in light of the Supreme Court’s
interpretation of the First Amendment in Brandenburg v. Ohio in 1969. In the now
well established ruling, the Court specified that state governments or the federal
government cannot criminalize speech in support of terrorist organization or actions,
unless it is likely that imminent action will be taken on those words.
All countries have also expanded the police power of the state in one way or
another in the effort to protect the homeland against terrorism and the rights of citizens
have become generally more restricted. Of course, the degree of the expansion of
police powers, and the corresponding restriction of civil liberties, varies greatly from
country to country. In terms of amendments to its terrorism related laws since 2000,
the U.K. must be viewed as being the most active in terms of frequent legislation on
the subject, followed by Germany and the United States. Given that Israel has been
dealing with terrorism since 1948, it has not sought great expansion to its powers
since 2000—but has largely continued its practice that it has been following for
several decades. Japan has also been successful in only modestly amending its laws
and taking a relatively low-tech approach to law enforcement through its practice
of community policing. The reader should note the varying degrees of response by
each country in the last decade, and be able to gauge whether or not the amount
170 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
of legislation is appropriate for the risks and threats of that country. The reader
might also reasonably conclude that one or more countries have enacted too much
legislation in regards to the threat of al-Qaeda, or that independent checks on the laws
do not exist (such as vigorous judicial review of the laws). As to the question of the
enjoyment of civil liberties by the citizenry, and the appropriateness of governmental
restrictions thereof, various approaches can be seen with each country. As to the
actual answer to this question as it relates to each country, the answer of course is
quite subjective, and therefore, it is for each educated citizen in society to determine
his or her reasoned and principled opinion on the issue.
Yet, in order for citizenry to be able to evaluate whether the actions of his or her
government is proper, transparency of government programs and laws are essential.
Countries that drape substantially all of its anti-terrorism measures under the cloak
of secrecy do its citizenry (and the world) a great disservice in the long run. A
citizenry kept in the dark about the actual scope and perimeters of homeland security
measures will be unable to evaluate the programs and make principled opinions as
to the efficacy of these programs. Further, those outside the country will not be able
to evaluate whether or not the country’s practices might be emulated elsewhere with
success. Thus, at a minimum, governments should strive to make transparent as much
of the anti-terrorism measures as possible, recognizing that virtually all citizens and
members of civilized society desire the eradication of terrorism. Individuals largely
only differ in terms of the proper governmental means to be utilized to effectuate
this goal.
Finally, consistent with the notion that all civilized nations and its citizenry are in
this together, the leaders of the various countries would do well to recognize that each
country has a vested interest in winning the war on terrorism, and that international
cooperation and pooling of resources is advantageous whenever possible. There
also needs to be reconciliation as to how the various countries approach the issue
of terrorism. While there is clearly no “right” answer in regards to how nations
approach the plague of terrorism, there should minimally be an understanding of
how different countries view and plan for such threats. Additionally, at a minimum,
there should be a willingness to learn from the practices of other countries in this war
on terrorism. At the maximum, there should be a strong effort at collective action
on the world stage. There is strength in numbers and no nation can or should “go it
alone” in the war on terror. Many countries have been successfully combating the
plague of terrorism for over the last half century—there should be a collective desire
to learn from the successes and failures of these countries.
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undergraduates,” Criminal Justice Review, 7(1), 1982.
Terrill, Richard, World Criminal Justice Systems: A Survey, 5th ed., Anderson
Publishing Company, 2003.
“Terror Regimes to be Crushed: Bush Promises Elite Soldiers,” Houston Chronicle,
July 20, 2002.
The Guardian, October 7, 2005.
“The International Criminal Court: Both Sides Lose,” The Economist, July 20-26,
2002.
“The International Criminal Court: Not (Quite) Strangled at Birth,” The Economist,
July 6-12, 2002.
“The President and the Courts,” New York Times, March 20, 2006.
“Thirty-two Indicted for Trying to Blow up National Court,” China Daily Source,
March 22, 2006.
Tigner, Brooks, “Europe, U.S. Differ on Homeland Security Mission,” Federal
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“Tricky Business,” The Economist, October 20, 2001.
178 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
United Nations Commission on Human Rights, “Notes verbales dated 20 January
and 2 and 11 February 2004 from the Permanent Mission of Spain to the United
Nations Office at Geneva and addressed to the Office of the United Nations High
Commissioner for Human Rights,” E/CN 4/2004/G/19, March 4, 2004.
“U.N. Votes 150-6 against West Bank Barrier,” CNN, July 20, 2004.
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France-Presse, October 1, 2004.
 Index

A v. Secretary of State for the Home Arab League 145

Department xiii, 70-71 Arafat, Yasser 9, 145
Abrams v. U.S. 18-19 Article 51, UN Charter 39, 92, 138, 156,
Abu Ghraib 40 159
Abu Hafas Al-Masri Brigade 51 Artistotle ix
accomplice liability Ashcroft, John 27, 46-47
Spain 122 asset forfeitures, U.K. 72
U.K. 60-62, 77 associational laws, Germany 95-96, 103
U.S. 77 Audiencia Nacional 117, 120-121, 165, 168
Ackerman, Bruce 164, 167-168 Aum Shinriky v. Doi 141-142
Act of Settlement of 1700 52 Aum Shinrikyo 137, 141
Adams, John 13-16, 126 Australia x
adminstrative subpoenas 29-32
Afghanistan 26, 39-41, 48, 50, 61, 87, 109, Badat, Saajid 49, 87
118, 121, 139, 164 Basic Law, Germany 75, 90-92, 94-95
aiding and abetting, crime of 28 Basque Homeland and Liberty see ETA
Alfred P. Murray Building 25 Basque 2, 113
Alien and Sedition Acts of 1798 13-16, 31 Batasuna 117
Alien Acts 14 Baveria 97, 99
Alien Registration Act 20-22 Belgium 116
Allouni, Tayseer 121 Berufsverbot 95
Al-Masri, Abu Hamza 68, 78, 84-85 Beslan ix-x, 2, 130-133, 135, 165
Al-Qaeda 3, 10, 38-39, 44, 46, 49, 51, 62, Bill of Rights, U.K. 1688 Act 52
64, 69, 87, 95, 100-101, 104, 107, Bill of Rights, U.S. 19 46, 53
109, 113, 117-118, 120-122, 125, Bin Laden, Osama 43, 86, 100-101, 121,
149, 157, 165, 168, 170 129, 157
American Revolution 1 Biometric Information
Amnesty International x, 45, 51, 127 Germany 81, 106
anticipatory self defense see preemptive self U.K. 81
defense, see also Article 51 Blair, Tony 1-2, 51, 59, 73, 75-80, 86, 163,
Anti-Subversion Activities Law 142-143 168
Anti-Terrorism and Effective Death Penalty Bossard, Andre x
Act of 1996 25, 68 Bourgass, Kamel 87
Anti-Terrorism Act of 2000 xii, 55, 58-70, Brandeis, Louis 5-6
80, 84, 86-87 Brandenburg v. Ohio 23-24, 77-78, 84-85,
Anti-Terrorism Act of 2001 xii, 53, 58-59, 99, 169
68-72, 74 Braudel, Frenand 7
Anti-Terrorism Act of 2004/2005 xii, 70, British Mandate Defense Emergency
72-76 Regulations 148
Anti-Terrorism Fence 150-151, 156, 166 Brown, John 9
Anti-Terrorism Special Measures Law 144 Bundesrat 93, 104
Arab American Institute xii Bundestag 93, 104, 108
180 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
burden of proof 61-62 Defense of the Realm 56-57
Burke, Edmond 9 Dennis v. United States 23
Bush Administration 24, 27, 38-39, 42-46, Department of Defense 28, 41, 43, 57
94, 131, 163, 166 Department of Homeland Security 1, 34-36,
Bush Doctrine 39-40, 92, 156 57
Bush, George W. 27, 39, 43, 46-47, 86, 94, Department of Justice 28, 30-34, 37, 47
129-131, 152, 163-164 deportation
Byles, Mark 86 U.K. 70-72, 74, 78-79
Bystander Cooperation Rule, U.K. 69 U.S. 14, 26, 30-31
Detainee Treatment Act (DTA) 43
Carlile, Alex 64, 66-67, 121 detention, generally 168-169
Cataluna 113 Israel 148-149
Central Intelligence Agency 24, 26-27, 40- Russia 127, 130, 149
41, 56 Spain 115-116, 119-121
Chechnya 2, 113, 125-127, 129-130, 134, U.K. 59, 64-66, 69-72, 74, 77, 79-80, 161
137 U.S. 21, 30, 33-34, 40-43, 45-48, 161
Churchill, Winston 45 Diet 144
Chuzaisho 140 DNA 29, 69, 98
Civil Guard, Spain 115 Double Jeopardy 53-54
Civil Law 4, 107, 126 Dr. Bonham’s Case 54
Civil Liberties Act of 1988 22 Du Bois, W.E.B. viii
Civil Liberties, Erosion of ix-x, xiii, xiv, 25, Duma 126, 131, 133
27, 31-33, 46-47, 90-92, 105-106
Closed Circuit Television 38, 81-83 Egypt 41
Coke, Edward 54 electronic surveillance
Cole, David 33-34 Germany 94, 102, 105
Commission Report, 9/11 xiii, 34 Israel 152
Common Law 4, 42 Japan 142-143
community security, (check U.K.) 91, 126, Spain 119-120
146, 161 U.K. 58, 86
Comparative Law Methodology ix-xii, 4-8 U.S. 24, 28, 38-39
conspiracy, crime of 28, 49, 84-85, 87, 122 El-Faisal, Abdullah 84
Control Orders, U.K. 73-76 Enemy Combatants 33, 42-48, 50, 72, 148-
Conventions of the Constitution 52 149, 157-158, 163, 168
Conyers, John 32 Espionage and Sedition Acts 16-20
Council of Europe Convention for the ETA 3, 113, 116-118, 122-123, 137
Prevention of Terrorism 76, 131, ethnocentrism xii, 5
160, 169 European Convention for the Protection of
Counter-Terrorism Committee 155 Human 52, 54, 59, 61, 63, 65, 70,
Criminal Justice Act of 2003, U.K. 71, 80 72, 74-75, 82, 161
European Court of Human Rights 55, 60-61,
Darkazanli, Mamoun 110 100, 127, 161
data mining 39 European Human Rights Charter xiii
Data Protection Act of 1998, U.K. 66, 82 European Union x, 1, 53-55, 98, 101-102,
Debs, Eugune 108, 159-162
Decentralized Law Enforcement Model 34- Europol 98, 101, 162
35, 37-38 Ex Parte McCardle 44
Defense Intelligence Staff, U.K. 57 Ex Parte Quirin 45
 Index 181
Exclusionary Rule 83 Israel 147-148, 169
Executive Order 9066 21 Russia 133, 169
Export Administration Act 26 Spain 122-123
extraordinary rendition see unique rendition U.K. 76-78, 80, 99, 169
Gloucestershire, Great Britain 66
Faris, Iyman 49 Government Communications Headquarters
Federal Border Patrol 97, 105 57-58
Federal Bureau of Investigation 17, 22, 24, Graham-Levin Amendment 43
27-30, 40, 46, 56, 97, 134 GS-10 Commission 105
Federal Constitutional Court 90-92, 95-96, Guantanamo Bay, Cuba 40-43, 48, 72, 135,
99-100, 106-108, 110-111, 116, 132 149
Federal Criminal Investigation Office 97, Guardia Civil 36
101
Federal Data Protection Law 102 Habeas Corpus 42-43, 45-46, 76
Federal Security Service 130-134 Hamas 101, 145, 149
federalism 5, 34, 38, 56-57, 96-98, 167 Hamburg, Germany 100-101, 109-110
Fifth Amendment 45, 53-54 Hamdan v. Rumsfeld 42-44
Firearms Act of 1968 87 Hamdan, Salim Ahmed 43
First Amendment 8, 13, 15, 18-24, 77-78, Hamdi, Yaser Esam 44, 45, 47-48
99, 169 Herodotus 5
Ford, Gerald 22 Hezbollah 62, 101, 145
Foreign Assistance Act 26 Hoffman xiii
Foreign Intelligence Surveillance Act 24, home demolitions, Israel 149
105 House of Commons 52-53, 73, 76, 79-80
Foreign Sovereign Immunity Act 26 House of Lords 52-54, 61-63, 70, 72-75
Fourth Amendment 29 House of Representatives 53
France 71, 80, 116-117 House of Representatives Select Committee
Franklin, Benjamin xiii on Homeland Security xi
free speech 8, 84-85 Human Rights Act of 1998 52-53, 59, 61,
Freeh, Louis 40 63, 82-83
Fromm, Heinz 101 Human Rights Watch 118, 127
Functional Approach to Comparative Law Hussein, Saddam 39, 156
7, 90
Identification Cards
Garzon, Baltasar 107, 121 Germany 81, 105-106
Gaza Strip 145, 147-148 Israel 152
Geneva Convention 42, 44 Spain 119
Germany generally xi, xii, 3, 45, 53, 57, 89, U.K. 81
116, 118, 128-129, 132-133, 138- U.S. 81, 106
139-141, 150, 157, 162, 165-167 Immigration
constitutional law 90-98, 107-108, 165 U.K. 69-72, 74, 77
criminal laws 10, 89, 98 U.S. 13-15, 26, 30-31, 33-34, 70
legislation after 2001 100-107 Incitement 60, 78, 133-134
legislation prior to 2001 98-100 incommunicado detentions 120
speech 8, 169 India 132
Gitlow v. New York 19-20 Intelligence Services Act of 1994 58
Glendon, Mary Ann ix, 5 Interception of Communications Act 58
Glorification of Terrorism, generally 169
182 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
International Convention on the Suppression Law Enforcement Structure, generally
of Acts of Nuclear Terrorism 134 166-167
International Court of Justice 150-151, Germany 96-98
156-157 Israel 151-152
International Criminal Court 157-159 Japan 139-141
International Law 153-162 Russia 130-133
Interpol 98, 162 Spain 115-116
Iran 33, 139, 145 U.K. 34-39, 56-57
Iraq 39-41, 86, 93, 108, 117-118, 121-122, U.S. 34-39
139, 156, 164-165 Lepsius, Oliver 93
Ireland 2 library records 29-32
Irish Republican Army 2, 8, 51, 58, 62-63, Libya 154, 159
117, 137, 163 Lincoln, Abraham 9, 46
Irons, Peter 14 Lindh, John Walker 47, 49-50
Israel, generally ix, xi-xii, 2-4, 35, 128, 130, Lockerbie Bombing 3, 25, 113, 154, 159
137, 143, 145-152, 156, 163, 165- London 3, 7, 38, 49, 51, 56, 60, 65, 77, 79,
166, 168-169 81, 84-87, 140
Anti-Terrorism Fence 150-151
constitutional law 146 Maastricht Treaty 98, 162
legislation prior to 2001 146-152 Madrid Train Bombing x, 3, 86, 113, 117-
targeted killings 149-150 118, 121-122, 165
Italy 80, 121, 129 Magna Carta 52, 76
Maitland, F.W. 7
Jamestown 13 Mansha, Abu 86
Japan, generally ix-xii, 3-4, 10, 21, 27, 89, Marbury v. Madison 7, 54, 107
93, 133, 137-144, 163, 165-169 Marshall, John 7, 54
constitutional law 138-139, 165 Masri, Abu Hams 68, 78
criminal laws 10 Material Witness Statute 33-34, 168
law enforcement structure 139-141 Maxwell, Bruce 13, 15
legislation after 2001 144 McVeigh, Timothy 85
legislation prior to 2001 141-143 MI-5 56-58
Japanese American Internment Camps 21- MI-6 56-58
22, 46 Middle East 4, 22, 46-47, 145-146
Japanese Self Defense Force 138 Military Order Number One 42
Jefferson, Thomas 14-16 Military Tribunals 42-47
Joint Intelligence Committee 57 Military, use of xii, 11, 26, 35-47, 115,
Judicial Review 129-131, 138-139, 144, 146-153,
Germany 164-166
U.K. 53-55 Milosevic, Slobodan 159
U.S. 7 Money laundering 31
Moscow 127, 130-131, 135, 165
Knesset 146 Motassadeq, Mounir El 109
Koban 140-141 Moussaoui, Zaccarias 47-49, 84
Korematsu v. United States 21-22 Munich 89, 97
Municipal Police 115
Laporte, R. v. Gloucestershire Constabulary
66 National Police Corps 115
National Rural Police, Japan 139-140
 Index
National Security Agency 39
National Security Letters 29, 32, 105
NATO x, 1, 159-160
Nazi Party 45-46, 90-91, 93, 95-96, 107,
167
New York viii, 2-3, 9, 14-20, 29, 31, 33, 38-
39, 45-46, 50-51, 68, 109, 144
Norman Conquest 56
North America 4
North Atlantic Treaty Organization x, 1,
101, 159-160
North Ossetia 2
Northern Ireland Emergency Provision Act
of 1973 60
Northern Ireland 2, 55, 58-60, 62, 70, 113
Nuremburg Tribunal 46
O’Connor, Sandra D. xiv
Office for the Protection of the Constitution
94, 97, 100-101, 103-104
Oklahoma City, Oklahoma 11, 25, 37, 85
Pacific Rim 4
Padilla, Jose 44, 45, 47-48, 50
Pakistan 41, 109, 122
Palestine Liberation Organization 9, 137,
145, 147, 149-151
Pan Am Flight 103 25, 113, 154, 159
Patriot Act, generally xii, 1, 15-16, 25,
27-34, 46-47, 53, 58, 66, 68, 76, 99,
102, 104-106, 108, 119, 168
public perception of 29, 32-33
Patrushev, Nikolay 131-133
Pentagon 48
Persia 5
Plato ix, 5
Plea Bargaining, Spain 121
Poland 132
Police and Criminal Evidence Act 64, 79-80
Police Box 140-141
Police Law of 1947 139
Posner, Eric xiv
Posse Comitatus Act 35-38, 115, 146, 166-
167
Pre-emptive Self Defense 39-40, 92, 138
Presumption of Innocence, U.K. 61-62
Prevention of Terrorism Act of 1989 xii, 9,
55, 58-60, 168
183
Prevention of Terrorism Ordinance of 1948
145-148, 166, 168
Privacy
Germany 94, 102
Japan 141-142
U.K. 69, 81-82, 141
U.S. 32, 38-39, 47, 66, 141
Proscribed Organizations, Terrorist, U.K.
62-64, 76
Protection of Communal Peace 99-100
Provisional IRA 2
Putin, Vladimir 126-127, 129-131, 164
Queen-in-Parliament 52-53
R v. Z 63
Rabel, Ernst 7-8, 90
Racial Profiling 21-22
Racketeer Influenced and Corrupt
Organization 28
Rahman, Kazi Nurur 86-87
Rasul v. Bush 42-43
Reagan administration 118
Real IRA 63
Rechtsstaat xiv, 91, 111
Red Army Faction 89, 99, 101-102
Reichel, Phillip 38, 97
Reid, Richard 49, 84, 87
Religious Based Systems 4
Religious Corporation Law of 1951 141
Rendition 39-42
Republic, The ix
Resolution 1373 x, 117, 155
Resolution 1456 155
Resolution 181 2
Ring of Steel 38
Roosevelt, Franklin Delano 21, 46
roving wiretaps 31
Royal Air Force Fairford Base 66
Rule of Law viii, xiv, 44, 52, 91, 116, 126
Russia, generally ix, xii, 2-3, 35, 71, 116,
118, 125-135, 137, 164-169
constitutional law 125-126, 128
legislation after 2001 129-134
legislation prior to 2001 128-129
Russian Federation Council 126, 130-131
184 Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Russian Federation Law Number 130-FZ
126, 128
Russian Special Forces 130
sarin gas 3, 137, 141, 143
Saudi Arabia 48
Schengen Group 97-98, 115
Schenk v. United States 18-19
Schepppele, Kim Lane 69, 93
Schily, Otto 101-102
search and seizure
Germany 94-95, 102
Japan 143
Russia 133, 141
Spain 114, 119-120
U.S. 24, 28-31, 67
U.K. 65-67, 69
search warrants 17, 24, 28-31, 58, 65, 100,
141, 143, 161
Secret Intelligence Service, U.K. see MI-6
Section Act of 1918 16-20
Security Council x
Security Package I 102-104
Security Package II 104-106
Security Service Act of 1989, U.K. 57-58
Security Service, U.K. see MI-5
Sedition Act of 1798 13-17
Sheldrake v. DPP 61-62
Shogun Ruler 139
Silent, Right to Remain 53
Six Day War 148-149, 151
Sixth Amendment 45
Slovakia 132
Smith Act see Alien Registration Act
sneak and peek warrants 28, 31
Social Laboratory 5-6
Socialist Based Systems 4, 126
Solicitation 84
Solove, Daniel 39
Spain, generally ix, xi-xii, 2-4, 10, 13, 16,
35-36, 47, 80, 106, 110, 113-123,
128, 135, 137, 141, 143, 147, 149,
150, 165-169
constitutional law 113-114
criminal laws 118-121
law enforcement structure 115-116
legislation after 2001 116-121
Special Branch (police), U.K. 56-57
Special Immigration Appeals Commission
70, 74
Specialist Operations 56
Star Chamber 53
state sponsored terrorism 26
Stevens, John Paul 42, 44
subpoenas 29-30
Sullivan, Jeremy 75
Taliban 39, 48-50, 87
Targeted Killings 149-150
Tenet, George
terrorism, definitions of 8-11, 27-28, 55, 60-
61, 98, 118, 128, 160, 168
terrorist organization, financial support of
26, 28, 31, 50, 60-61, 66-67, 72,
122, 147
terrorist organizations, designation of 25-26,
28, 60-62, 95, 102-103, 109-110,
128, 147
The Digital Person 39
Tokyo 3, 137, 143
Treaties x, 116, 153-155, 158, 160
Ukraine 132
UN Commission on Human Rights 116
UN Committee Against Torture 118
UN Security Council Resolution 1624 131
UN Special Rapporteur on Torture 116, 118
Unique Rendition 39-42
Unitary Government 56-57
United Kingdom, generally ix, xi-xii, 1-4, 9,
38, 41, 47, 49, 51-90, 92-93, 98, 99,
106, 113, 117, 121, 133, 137-138,
141, 144, 147, 161 163-169
constitutional provisions 51-55
protection of civil liberties 51-55
legislation after 2001 68-83
legislation prior to 2001 55-68
United Nations 1, 139, 154-155
United Nations Charter x, 138, 151, 153,
155-156
United Nations General Assembly 1, 9, 150-
151, 156
United Nations Security Council x, 1, 151,
153-156
United States, generally viii-ix, xi-xiii, 1-5,
7-8, 11, 13-51, 53-54, 55-57, 59,
 Index
64-65, 67-68, 70, 76-78, 81-84, 87,
90, 92-97, 101, 104, 106, 108-109,
115--119, 121, 126, 129, 131-135,
137-142, 144, 146, 150-152, 157-
160, 163-169
United States Military Academy 39
United States Supreme Court 16-24, 26,
42-45, 108
Vermeule, Adrian xiv
Waco, Texas 25
War on Terrorism ix-x, 11, 37, 44, 46-47,
52, 60, 82, 92, 116, 118, 127, 129,
131, 39, 144, 149, 152, 157-158,
163-165, 170
185
Washington, DC viii, 2-3, 9, 38, 51, 68, 109,
144
Weimar Constitution 90-91, 93
Weimar Republic 90
West Bank 145, 147-148, 166
Whitehead, Alfred North 4
World Trade Center 25, 48
Yates v. United States 23
Yeltsin, Boris 125, 128
Ziercke, Jorg 101
Zimbabwe x
Zogby, James xii