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Journal of the Institute of Justice & International Studies 2008 Number 8 ISSN Papers from the February 2008 Conference: Terrorism & Justice The Balance for Civil Liberties Copyright 2008, Institute
Journal of the Institute of Justice & International Studies 2008 Number 8 ISSN Papers from the February 2008 Conference: Terrorism & Justice The Balance for Civil Liberties Copyright 2008, Institute of Justice & International Studies Department of Criminal Justice University of Central Missouri Warrensburg, MO USA Journal of the Institute of Justice & International Studies Editorial Board: Fiona Brookman, Centre for Criminology, University of Glamorgan, Wales, UK Gerard De Jonge, Faculty of Law, University of Maastricht, Netherlands. Tim John, Centre for Criminology, University of Glamorgan, Wales, UK Roddy Nilsson, University of Vaxjo, Sweden Paul O Mahoney, Trinity College, Dublin, Ireland Harriet Pierpoint, Centre for Criminology, University of Glamorgan, Wales, UK Rick Sarre, School of Commerce, University of South Australia Michael Vaughn, College of Criminal Justice, Sam Houston State University, USA Issue Editor: Don Wallace, Criminal Justice Department University of Central Missouri The Journal of the Institute of Justice & International Studies is published annually. Subscription rates within or outside the Untied States: $50.00 per year for institutions, $25.00 per year for individuals. The views expressed in this publication are those of the authors. They do not necessarily represent the opinions of the editors or publisher of the Journal of the Institute of Justice & International Studies. All rights reserved. No part of this journal may be reproduced, stored in a retrieved system or transmitted in any form or by any means without permission in writing from the Institute of Justice & International Studies. The authors warrant that the work is the product of his or her original effort, and to the best of the author's knowledge and ability, does not defame any individual or entity or infringe upon any individual's or entity's rights, including intellectual property rights, and includes proper citation to other published works. For information about the Journal of the Institute of Justice & International Studies, write or call: Director, Institute of Justice & International Studies Department of Criminal Justice Humphreys Building Room 300 University of Central Missouri USA 660/ Copyright 2008 by the Institute of Justice & International Studies Department of Criminal Justice University of Central Missouri Printed by: University Copy Center, Printing Services, University of Central Missouri Journal articles are abstracted and indexed in HeinOnline, ProQuest, and Westlaw. ii CONTENTS Preface Plenary Session Papers/Articles: LESS SAFE, LESS FREE: A PROGRESS REPORT ON THE WAR ON TERROR David Cole....1 THE PERFECT STORM: ARE WE HEADED FOR A RESURGENCE OF RIGHT-WING DOMESTIC TERRORISM? Mark James ASYMMETRIC THREATS IN THE GLOBAL FIGHT AGAINST TERRORISM Stefan Lorenzmeier...20 INTERROGATION USING FUNCTIONAL MRI AND COGNITIVE ENGRAMS Donald H. Marks...31 COMMUNITY-BASED PEACEBUILDING: A CASE STUDY FROM NORTHERN IRELAND Harry Mika...38 IMPACT OF THE WAR ON TERROR ON HUMAN RIGHTS TERRORISM AND JUSTICE Jumana Musa.55 Panel Session Papers/Articles: COUNTER-TERRORISM AND CIVIL LIBERTIES: THE UNITED KINGDOM EXPERIENCE, Jessie Blackbourn POLITICAL PARTIES IN NEPAL: OPPORTUNITIES AND CHALLENGES Keshav Bhattarai and Darlene Budd TERRORISM AND MEDIA IN KOREA Yeok-il Cho and Franklin Wilson PROSECUTING DOMESTIC TERRORISTS IN THE AMERICAN COURT SYSTEM: A STUDY OF THREE CASES Gregg. W. Etter, Sr HAMILTONIAN AND MADISONIAN DEMOCRACY, THE RULE OF LAW AND WHY THE COURTS HAVE A ROLE IN THE WAR ON TERRORISM Arthur H. Garrison AN INSIDE VIEW OF DUTCH COUNTERTERRORISM STRATEGY: COUNTERING TERRORISM THROUGH CRIMINAL LAW AND THE PRESUMPTION OF INNOCENCE Marianne Hirsch Ballin iii IS TORTURE EVER JUSTIFIED? COLLEGE STUDENTS' ATTITUDES TOWARD COERCION/TORTURE Robert J. Homant, Michael J. Witkowski, and Megan Howell PREVENTIVE DETENTION RESTRICTING THE FREEDOM TO HARM H. Martin Jayne TERRORISM AND HUMAN RIGHTS: THE SOUTH AFRICA AND NORTHERN IRELAND EXPERIENCE Joanne Katz and David Tushaus TERRORISM IN PERSPECTIVE: REALITY, FEAR, AND THE THREATS TO CIVIL LIBERTIES FROM THE WAR AGAINST TERRORISTS Sheldon G. Levy..200 TERRORISM AND ASYMMETRIC WARFARE: STATE RESPONSIBILITY FOR THE ACTS OF NON-STATE ENTITIES NICARAGUA, TADIC, AND BEYOND. Kiran Mohan ASPECTS OF TERRORISM: THREAT AND USE OF TOXIC CHEMICAL SUBSTANCES Georgi Popov, Tsvetan Popov, and John Zey..221 RIGHTS OUTSIDE THE CONTRACT AND CONVENTION Jasdev Singh Rai..230 WHY DO THEY HATE U.S.? EXPLORING THE ROLE OF MEDIA IN CULTURAL COMMUNICATION Divya Sharma THE PHENOMENON OF XENOPHOBIC VIOLENCE: A HISTORICAL AND SOCIAL PSYCHOLOGICAL REVIEW OF AMERICA IN THE WAKE OF TERROR Victoria Springer and Barbara Larsen..263 THE WAR ON TERROR S IMPACT ON HABEAS CORPUS: THE CONSTITUTIONALITY OF THE MILITARY COMMISSIONS ACT OF 2006 James B. Staab.280 RESIST OR COMPLY: AN EXAMINATION OF STUDENT ATTITUDES ON SURVEILLANCE AND GOVERNMENT ACCESS OF PERSONAL RECORDS Richard Tanksley and Jack E. Vincent 298 REFLECTIONS UPON SOME PEDAGOGIC ISSUES ARISING FROM THE TEACHING OF SECURITY-RELATED SUBJECTS IN UK UNIVERSITIES David Welsh and Craig McLean..309 DEFINING TORTURE: THE POTENTIAL FOR ABUSE Lisa Yarwood..324 iv T PREFACE he scope of the February 2008 Terrorism & Justice: The Balance for Civil Liberties Conference was enunciated in the Call for Papers: This conference seeks to investigate the breadth of issues underscoring the impact of counter-terrorism efforts upon the diverse concepts of justice at both domestic and international levels. Domestically, in the efforts to counter the threats of terrorism, many observers see an inherent conflict between the broad interests of security and the protection of individual rights and freedoms. A shift away from civil liberties during periods of emergency was predicted by James Madison in his debate with Thomas Jefferson on the ratification of the Bill of Rights when he wrote that experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Thus, we have seen some counter-terrorism measures, such as the USA Patriot Act, being exceeded by those that have not been enacted by Congress but by Presidential order. U.S. courts are being challenged in the wake of 9/11 to accede to government claims of wartime authority that tilt against longstanding fundamental rights. Indeed in his reply to Madison, Jefferson considered the strongest reason for enacting a bill of rights: The legal check which it puts into the hands of the judiciary. Yet, not only their impacts upon justice, but the effectiveness of the post 9/11 counterterrorism responses may be difficult to assess. In this regard, lessons can be learned by the experiences of other countries with their counter-terrorism/insurgency measures. The U.S. might now, both in its foreign policy and its domestic counter-terrorism measures, be entering a period of transition in how it views the proper response of justice to the atrocities inflicted by terrorist acts. The national strategy for combating terrorism, according to the FY Department of State and USAID Strategic Plan: stresses the advancement of democracy, the rule of law, and a global environment inhospitable to violent extremism. Diplomacy and foreign assistance will support peace and security-related activities that create the necessary space and time for longer-term developmental solutions to terrorism to develop and take hold. In these statements of policy, the U.S. appears to be joining other countries to invoke a theme of transitional justice as a key aspect of establishing a lasting peace and building effective and just societies. Restorative justice principles may be invoked in these efforts of longer-term developmental solutions. The paper proposals received in response to this Call for Papers came from a widevariety of academic disciplines. An incomplete listing would include: psychology, sociology, geography, history, political science, philosophy, communication, safety sciences, criminal justice, disaster management, legal/justice studies. This response resulted in over 70 presentations scheduled for the Conference. These represented the work of over 90 authors and co-authors (from over 3 dozen non-academic and academic institutions in addition to UCM students and faculty members). There were many international perspectives on these issues represented in many of the papers, presented by individuals from four continents and eight countries. The development of this event relied upon the cooperation of several academic, administrative, and support units at Central. Individuals from the Office of Academic Affairs, v the Office of International Programs, the Office of Academia Media Services, and the Office of Sponsored Programs provided assistance for this Conference. The assistance of Central students involved in the many needed details of putting this conference together must be acknowledged with deepest gratitude. This issue of the journal represents a tangible enduring product of this Conference. The presenters were invited to submit extended papers for consideration for publication. We are fortunate to have a majority of the plenary session speakers providing either extended papers or edited remarks based on their presentations. Further, the submissions from the conferees were submitted to peer reviewers. These reviewers provided extraordinary and needed guidance on the selection process that resulted in this special Conference issue of the Journal of the Institute of Justice & International Studies. Many thanks go to these reviewers and all those who were solicited for advice and comments. The result is an extraordinarily diverse and quality set of views on this subject-matter. Don Wallace Director Institute of Justice & International Studies Department of Criminal Justice University of Central Missouri THE JOURNAL OF THE INSTITUTE OF JUSTICE & INTERNATIONAL STUDIES is a multi-disciplinary, peer-reviewed journal devoted to the dissemination of information regarding a wide variety of social issues, both national and international, and a wide variety of research and presentation techniques. MANUSCRIPTS Manuscripts are typically the outcome of a presentation by the author at the annual academic conference hosted by the Institute. These manuscripts should be submitted vie to Only original, unpublished manuscripts not under consideration by other journals will be considered. Submissions should follow either in the latest editions of the Publication Manual of the American Psychological Association or the Uniform System of Citations. vi LESS SAFE, LESS FREE: A PROGRESS REPORT ON THE WAR ON TERROR David Cole * Georgetown University Law Center Address to the Terrorism & Justice Conference University of Central Missouri, February 18, 2008 Steven Spielberg film, Minority Report, based on a science fiction short story by Philip K. Dick, is set in the not-so-distant future in Washington D.C. at a time when we have miraculously solved the problem of crime or at least apparently so. The government has captured three witches who can predict the future with almost perfect accuracy. They predict who will commit crime so accurately that Congress enacts a pre-crime law that makes it a crime to think about committing a crime. With the help of these witches predictions, the government can convict people before the crimes ever occur. All is rosy until, of course, someone figures out how to trick the witches into predicting that the protagonist will commit a murder that he does not in fact intend or plan to commit. As far as I can tell, we do not have witches in the Justice Department, predicting who will commit crimes in the future. Nonetheless, the Bush Administration since 9-11 has adopted a strategy, which in some sense depends upon the ability to predict with incredible accuracy at what will happen in the future. It is that strategy that I want to discuss this afternoon. It was given its name by the U.S. Attorney General during the first Bush Administration, Missouri s John Ashcroft, who argued that what we need in the wake of 9-11 is a preventive paradigm. The argument is understandable: when facing foes who are willing to commit suicide in order to inflict mass casualties on innocent civilians, it is not enough to bring them to justice after the fact. The perpetrators are dead -- and so are many innocent civilians. Thus, the goal must be to prevent the next terrorist attack from occurring. Of course we all want to prevent the next terrorist attack from occurring. No one wants to see another 9-11 or anything like it. But the preventive paradigm as it has been employed in this particular conflict has a particular character. It deploys the state s most coercive authorities, based not on objective evidence of past or even ongoing wrongdoing, but based on predictions about future harms we want to prevent. It is the use of coercive preventive measures that most characterizes the preventive paradigm as outlined by John Ashcroft and overseen by the Bush Administration in the war on terror. Consider, for example, This notion of using coercive measures based not on objective measures of past or ongoing wrongdoing, but on predictions about future * 2008 by author, reprinted here by permission. Please send your correspondence to author at Georgetown University Law Center, Washington, DC. Prof. Cole is the co-author with Jules Lobel of Less Safe, Less Free Why America Is Losing the War on Terror, 2007, New Press: New York, upon which this address is based. Readers interested in citations for the assertions contained herein should refer to the book. The Journal of the Institute of Justice & International Studies Vol. 8 2 The Journal of the Institute of Justice & International Studies harm, includes preventive detention. In the first two years after 9-11, the government locked up by its own count over 5,000 foreign nationals in preventive detention antiterrorism measures. These are people locked up, not to hold them responsible for things they have done in the past, not based on objective evidence of past wrongdoing, but out of a concern that they might commit a terrorist act in the future. So they are locked up to prevent that possibility from occurring. The preventive paradigm also includes what President Bush calls alternative interrogation tactics, but what the rest of the world knows as torture. The argument that has been made to justify coercive interrogation or torture is inevitably based on the fear of an imminent terrorist attack. This fear is used to justify strapping men down and pouring water over their faces so they cannot breathe and fear they will drown in order to encourage them to talk. No one argues that it is necessary to use such torture to punish someone for a crime after the fact. Even if it can be established beyond a reasonable doubt that a person has committed a heinous crime for which he can be executed, we would not torture him. The pro-torture argument is that to prevent the ticking time bomb from going off, surely it is justified then to use a little bit of torture. So here the preventive paradigm makes what was unthinkable, thinkable. As a third example, consider preventive war, the notion that led the U.S. into Iraq. During the run-up to the war with Iraq, the Pentagon criticized the traditional international law view that a country may unilaterally attack another country only in self-defense -- that is, only when the country has been attacked or is facing an imminent threat of attack. This standard requires justifications that are objectively verifiable. The Administration argued that this standard does not make sense in the era of weapons of mass destruction, rogue states, and international terrorist organizations. The country needs to be able to act unilaterally and preventively where it has not been attacked and does not face an imminent threat but there is a gathering storm that needs to be dealt with. The invasion of Iraq was justified on those grounds. Let me make it a little more concrete by talking about one of my clients who was a victim of the preventive paradigm. His name is Maher Arar, a Canadian citizen born in Syria and therefore a dual national. Arar moved with his family from Syria when he was a teenager and he has been living in Canada for the last two decades. He was returning home to Canada from Europe in September 2002 when,while changing planes at JFK Airport in New York, he was pulled out of line by immigration officials, locked up for two weeks, denied access to an attorney, interrogated at length, and ordered deported on the basis of secret evidence that claimed he was a threat to national security. He denied he was such a threat, stating that he had been coming to the U.S. for years (in fact he had worked for years in Boston at a computer company). Furthermore, on this trip he was not trying to enter the U.S. but was just trying to change planes to go home to Canada. The United States not only ordered him deported, but placed on a federally chartered jet that took him not to Canada, but to Syria. Why would the U.S. take a Canadian, who is simply returning home to Canada, and forcibly redirect him and send him to Syria? The answer lies in the fact that Canada does not have a record of torturing its suspects. Syria does. And Syria did. While interrogating him with questions virtually identical to those which the U.S. authorities had asked him at JFK Airport, Syrian officials beat him with an electric cable. They, ultimately locked him up for a year without charges, most of the time in a cell the size of a grave 3 feet by 6 feet by 7 feet. Cole 3 At the end of a year, Syria released him because they found no evidence that he had engaged in any wrongdoing whatsoever, much less terrorism. He went back to Canada. This time he did not change planes at JFK Airport. Canada launched a massive inquiry into his case, which resulted in an 1100-page report fully exonerating Arar. Canada paid him ten million dollars in damages for that country s part in the wrongdoing, having provided the U.S. with some negligent misinformation. Canada did not, as far as we know, cooperate with the U.S. in deciding to send Arar to Syria to be tortured. That was the call of the U.S. Maher Arar was a victim of the preventive paradigm. The U.S. did not have any evidence that he engaged in any wrongdoing. If the U.S. had, the government would have tried him, or might have sent him to Guantanamo. But U.S. officials had suspicions about Arar, and when he could not dispel those suspicions through the interrogations without a lawyer for two weeks at JFK, U.S. officials delivered him to Syria so that the Syrians could use more extreme tactics. These tactics were justified of course in the name of prevention. The U.S. wanted to prevent Arar from doing something dangerous in the future. I will make three points about this preventive paradigm. The first is that it puts tremendous pressure on the values that we associate with the rule of law, the Constitution, and the American society at its best. Second, I will argue that while this preventive paradigm has been adopted in the name of making us more secure, it has in fact made us less secure and more vulnerable to terrorist attacks. Third, I will suggest that this was tragically unnecessary. Prevention is possible without compromising our most fundamental principles and without inspiring the kind of backlash that the preventive paradigm has occasioned. I. Let me first talk about the sacrifices brought on by the prevention paradigm. The rule of law is a critical element in the legitimacy of the state s monopoly on coercive authority. We give the state the authority to lock us up, to fine us, and in this country, to execute us, on the condition that it abide by certain basic principles of the rule of law. But the rule of law may appear to be an obstacle when the state does not have e
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