COURTS AND TERRORISM: NINE NATIONS BALANCE RIGHTS AND SECURITY

by Mary L. Volcansek and John F. Stack, Jr. (eds). New York: Cambridge University Press, 2011. 284pp. Hardback. $85.00/£55.00. ISBN: 9781107001107. Adobe eBook. $68.00. ISBN: 9781139036757.

Reviewed by Kawu Bala, Solicitor-General’s Office, Attorney General’s Ministry, Belmopan, Belize Central America. Email: kabaaz [at] gmail.com.

pp. 598-600

"Terrorists reject law and choose means beyond the law. How then can governments through law respond to terrorism and remain true to democratic values and the rule of law?" (p.4) The book Courts and Terrorism assembles a collection of eleven chapters by political scientists and legal luminaries which bring to the fore analyses and suggestions with respect to the legal and judicial policies of some selected countries in the “War on Terror.” The book is organized around themes which the courts should protect with regards to the dilemma between the peril of terror and the values cherished in the global community of mankind: liberty; human rights; humane detention; democratic values, and investigates whether there is a global model that should be followed to ensure a structure capable of protecting lives within the framework of our legal systems. These questions and lessons that can be drawn are addressed through case studies of some nine countries, including Northern Ireland, Australia, Italy, and Columbia: terrorism is not limited to Al Qaeda.

As Volcansek states in the introduction, the purpose of the book is to provide a base for discussion as “the public in the western world awakened to a new and heightened concern about terrorism” that unfortunately led to the wanton disregard for the “adherence to the rule of law” (p.1). Courts, however, especially in light of the recent "judicialization" of politics, are seen as the last hope in this time of emergency so that the acts of governments are refined to be in tune with ideals known to the world. But as Volcansek notes, Courts act in a larger political milieu.

In the first chapter, David M. O'Brien argues that the “War on Terror,” like most wars, has bequeathed to the world lots of arguments in the field of politics and law where long-standing criminal procedures are seen as inadequate. This is the crux of the problem in time of war as there exist always “tensions between security and liberty” (p.9) and as such even scholars are at a fix where to draw the line over the role of the law and by extension the courts in democratic countries. The world has seen too much of executive orders that arguably could be termed “constitutional dictatorship” (p.10).

Hence it is to the courts and people’s opinion that the world has now turned to in order to draw and enforce the thin line between national security and liberty that cannot be compromised if democracy is still regarded as the best form of governance. The “War on Terror” has by its nature brought about “litigations” (p.21) which from face value could be seen as alien or novel in [*599] the legal systems of nations being affected by this new and on-going threat to lives and properties, both private and public. But does that mean that the global citizens should be taken for a ride by countries introducing (arguably archaic) laws that undermine personal liberty, under the pretext of fighting threats, perceived and unperceived? Certainly not, and this is what the book seeks to convey.

The contributors have faith that the law should be understood as the viable option and the only tool to safeguard our democratic values. The reverse is however the case as policy responses to terror threats have exposed some countries’ “contempt for international law and procedure” (p.34). This “heightened aversion” since September 11 has indeed increased as the book states. The key questions are then, as citizens of the world: what are we going to do? How is the world going to curtail the problems of “overreaction”? Were there deficiencies in the pre-September 11 legal systems of democratic countries discussed that warrant changes in federal laws?

In chapter 2, Aya Gruber accurately calls on the United States and other European countries to look inward and repair their “damaged international reputation[s]” (p.35). The United States is distinctive, standing tall in the world in terms of values of its founding fathers; however, it has put on trial many of her core principles out of sheer speedy application of “secretive procedures.” With regard to classified documents, Louis Fisher reminds us not to forget such statements like that of the Senate Judiciary Committee: “government by secrecy benefits no one” (p.62).

In chapter 4, Volcansek explains that all did not change on September 11: Britain's pre-September 11 treatment of suspected terrorists in Ireland due to “political panic” was consistent with the present practice, seeking a military solution to a largely socio-political problem (p.89). Not much has changed since then as the Anti-Terrorism, Crime and Security Act of 2011 was passed within only “16 hours consideration by the House of Commons” (p.101). And one might tend to agree with Lord Hoffman’s statement that the actual danger to lives comes from archaic laws or laws that are passed with speedy introduction by the legislators (p.111).

While September 11 may not have led to the invention of repressive law enforcement tactics, it has been cause for their revival, and their spread to democratic countries where they are more visible: secret prisons, detention without trial, aggressive forms of interrogation (such as the controversial “water boarding”) and host of other unknown methods. But what role do the methods play in the scheme of things? This is the challenge that terrorism presents to democracy (p.150) and now civilized citizens will have to contend with the “relaxation of rules of due process of law” (p.151). No one is free, and what is the line one is ready to protect of personal liberties when eavesdropping and acute surveillance are now on the rise that daily affects and cut across even the law abiding citizens of the world?

Interestingly the book asserts that the world since the “horrors of September 11, 2011” has seen the emergence of legal and judicial procedures yet the [*600] world lives on with terror while governments are still enacting laws and overreacting at the same time (p.224). Will people have to live in state of emergency like in Colombia “for much of the last four decades” (p.226)? Or will Courts rise to the challenge as Carlo Guarnieri argues they have in Italy (ch.9) and Blanca Rodr√≠guez-Ruiz suggests they have in Spain (ch.10)? Ironically some courts have been constrained to act swiftly to safeguard abuse of constitutional powers in achieving a balance between “security and rights” (p.228) while others “act aggressively to preserve rights” (p.232); that should be the real role of the courts in time of emergency such as now.

Looking at the chapters of Courts and Terrorism, it is not far to conclude that the US and the remaining countries analyzed in the book have not changed significantly. The hope was Obama, but unfortunately there has been little change in secrecy and detentions; there is no end in sight as the “War on Terror” rages on. This brings the need to restructure the legal and judicial mechanisms against this endless, longest war so that national security is protected within the ambit of values accepted in the world.

© Copyright 2011 by the author, Kawu Bala.