by Kent Roach. New York: Cambridge University Press. 482pp. Cloth $99.00. ISBN: 9781107006164. Paper $32.99. ISBN: 9780521185059.
Reviewed by Tracy Lightcap, Department of Political Science, LaGrange College. E-mail: tlightcap [at] lagrange.edu.
This is an interesting and useful book. As I often remind my students, it is almost impossible to make a considered judgment of public policy unless it is first put into a comparative framework. Unfortunately, one of the characteristics of much of the scholarly work on legal and policy developments following the 9/11 attacks has been a lack of just such comparisons. To some extent this is understandable. The unique legal gymnastics performed by the United States to justify its wars in the Middle East and the changes to its intelligence and interrogation policy have tended to concentrate analysts’ attention. Kent Roach’s new book, however, takes us well beyond these confines. He has set himself a formidable task: to catalogue legal responses to the terrorist threat by the United Nations, Western democracies, and a selection of non-Western polities. That alone would be worth praising, especially since he does it at a reasonable length and in an understandable writing style. However, Roach also weaves into his survey a sophisticated critique of common legal responses to terrorist activity. The result is an illuminating path into both legal and utilitarian considerations concerning policy towards terrorist activity that is accessible, complete in coverage, and interesting to any student of these matters.
Roach begins in a way that is both unexpected and enlightening: the response of the United Nations to the attacks of 9/11. This choice shows how carefully he has thought through his subject. The actions urged on the UN by the United States after the attacks have had a much wider influence on the development of anti-terrorist law then I had realized. The resolutions (1368 and, especially, 1378) passed after 9/11 produced a new international legal regime with mandates to members for reporting on legal and executive actions taken to suppress terrorism, sharing intelligence, impeding movement of terrorists across national borders, and disrupting terrorist “financial networks.” Resolution 1378 also set up a new UN institution – the Counter-Terrorism Committee (CTC) – to oversee member compliance. Subsequent resolutions in 2004 and 2005 – 1540 on nuclear proliferation, 1566 on defining terrorism, and 1624 on criminalizing promotion of terrorism – all contributed to this new international response.
As Roach points out, numerous problems arose from this effort. First, many aspects of the new regime proved to be less helpful than anticipated. The best example of this is the effort to interrupt financing of terrorist attacks. Initially, it was assumed that putting brakes on funds that could go to bankroll terror would be an effective weapon. Subsequent revelations of the trifling amounts spent to support the 9/11 and later attacks, however, have made the extensive efforts countries undertook to [*130] meet the requirements of Resolution 1378 look somewhat ridiculous.
But this pales beside the unanticipated effects of mandating the suppression of terrorism without adequately defining what it is. Chapter 2 in Roach’s book is, in many ways, the most illuminating in the book. Here he looks at the way different regimes reacted to the UN resolutions. Some – Egypt and Syria – used the reporting requirements to justify their current repressive practices. Both had codified regulations from their colonial period that provided extensive executive powers for detention without trial or judicial review and applied these powers to a broad scope of political activities. The failure of the resolutions to define terrorism (even 1566 is not exact enough), the vagaries of the resolutions concerning finance and immigration legislation, and the non-confrontational stance of the CTC toward reporting governments allowed these countries to portray their repression of political opposition as UN sanctioned efforts to suppress terrorism. Others – Israel and Singapore – also seized this opportunity to justify policies widely criticized internationally and even by other UN agencies. In these cases, however, the use of judicial review of detention and interrogation policy (Israel) and the adoption of innovative rehabilitation efforts for terrorists (Singapore) temper the picture considerably. Finally, Roach’s description of the response of Indonesia, a country that has recently repudiated an authoritarian past, is encouraging. The Indonesians have made a concentrated effort to avoid the excesses of their recent past. Their legislature forced the government to withdraw the original (and draconian) anti-terrorist law it proposed. Subsequent to the Bali attack, the Indonesians did adopt a stricter regime, but the new laws have kept a criminal justice orientation and resulted in a more public and transparent approach then might have been anticipated.
The bulk of Roach’s book is, as expected, focused on responses by the United States, the United Kingdom, and cases influenced by them such as Australia and Canada. . The useful role of comparative analysis in examining the policy trends fostered by the 9/11 attacks is perhaps best illustrated by his examination of the development legal responses to terrorism in the United States and the United Kingdom. It is a well known cliche in courses on comparative government that presidential and parliamentary systems lead to quite different types of policy and policy making, differences usually illustrated by contrasting these two cases. Policy on terrorism is a prime example, given here in considerable detail.
Roach reveals that the United States stands out in contrast to these other cases in two ways. The first is the executive discretion and great secrecy that has characterized the American approach to terrorism. Virtually every aspect of policy involving the interrupting of terrorist plots, the detention of terrorist suspects, and the development of intelligence through interrogation by the United States has been conducted by executive agencies operating under secret directives and legal opinions. In part, of course, this has been the result of the declaration of a de facto war against al-Qaeda and those deemed to be its allies. The Authorization to Use Military Force and the USA PATRIOT Act passed by Congress soon after 9/11 and the Homeland Security Act in 2002 provided, under an expansive interpretation of the President’s powers as Commander in Chief during wartime, all the Congressional [*131]action and all legal framework needed by the Bush administration to move against those it considered enemies on a variety of fronts. The story by now is a familiar one and Roach adds no new revelations to it. What he does add, however, is perspective on the range and thoroughness of the administration’s efforts. For instance, consider how the requirements of the UN resolutions concerning the movements of suspected terrorists could be met. Section 412 of the PATRIOT Act provides for detention and expulsion of representatives of organizations thought to hinder counter-terrorism efforts. As Roach points out, however, the existing immigration law provided such power for the executive that Section 412 was and remains a dead letter. Further, the assumption of executive power by the Bush administration extended to what Roach calls “extra legal” measures; i.e. policies undertaken without any specific legislative grant. Here, again, the terrain is familiar. The executive orders moving the National Security Agency into areas of surveillance forbidden by the Foreign Intelligence Surveillance Act are perhaps the best example of this, though the OLC “torture memos” and the attempt to sidestep judicial review of detentions by using Guantanamo Bay come very close.
While the final decisions on policy concerning detention and interrogation policy in the United Kingdom, Australia, and Canada have sometimes resulted in more draconian policies, the overall transparency of the policy making process stands out in contrast. This is not to say that executive discretion and secrecy are not found in the parliamentary countries; far from it. What does distinguish them from the United States, however, is the extent to which basic decisions on these matters have been regulated by legislation. To some extent this could be expected; party discipline in parliamentary systems makes the kind of executive dissembling found in the United States superfluous. Still, the contrast is surprising; in all the parliamentary cases the level of public debate on all aspects of terror policy has been much more open and revisions of the laws as experience accumulated much more common.
The second contrast between the United States and the other cases is the degree of dependence on judicial decisions to regulate policy on terrorism. Here the findings Roach makes are quite counterintuitive. In the United States, strong constitutional limitations and a tradition of executive discretion during times of crisis resulted in a concerted legal effort to avoid judicial review. The Bush administration was eager to avoid detainees having a resort to the courts, fearing that the constitutional protections involved in criminal due process would make it harder to bring the terrorists to book and that intelligence sources would be compromised. When this proved difficult, the result was a long (and continuing) effort to protect the executive from legal processes by sponsoring new legislation in response to court decisions and invoking the doctrine of state secrecy. Consequently, the courts, when they did intervene, did so using common law principles, not legal interpretations of legislation, a course with limited scope and application. Further, American courts have proven so reluctant to challenge state secrecy that abused detainees have had a difficult time establishing standing.
In the United Kingdom, on the other hand, legal challenges to legislation establishing detention and expulsion powers for suspected terrorists produced what Roach says is the most significant court ruling on [*132] legal responses to 9/11. In the so-called Belmarsh cases in 2004, the Lords overturned Part IV of the Anti-Terrorism, Crime, and Security Act on the grounds that the detention provisions were discriminatory and disproportionate. Here we find a state without a written constitution and without a strong tradition of judicial review providing legal processes that directly overturned a major feature of the legislation justifying the government’s policies on grounds of statutory construction. Further, subsequent cases in Britain, Canada, and Australia have provided the very access to legal redress for abuses in detention that courts have found difficult to provide in the United States. The comparison is both surprising and illuminating. Roach also has similar and interesting comparisons to make concerning the courts and anti-terrorism laws in Australia and Canada.
I did have one reservation concerning Roach’s analysis of the United States, however. It concerns his use of the term “extra-legal” to describe some of the executive initiatives taken by the Bush administration. As Griffin (2009) points out, actions by the executive in the United States can attain legal status in several ways. In the past, legal change has been straightforward; legislation is passed or the constitution revised. But this is not the only way legality can be established, especially in recent times. Actions taken by presidents exercising their executive discretion can also be informally legalized by becoming routine actions that are neither forbidden by specific legislation nor declared out of constitutional bounds by the courts. Given the broad reach of executive power in the United States – and one does not have to be an supporter of a “unitary executive” to see that it is very broad indeed – the decisions made during the Bush years are still waiting in the wings, only a crisis and an executive order away from being reinstated and legitimized. The case for a true legal regime controlling detention and interrogation policy in the United States could have been made stronger by realizing this.
But perhaps it is time to sum up my impressions of this book. As I have mentioned, I was taken aback by the breadth and depth of Roach’s coverage of the legal responses by his cases. I have only scratched the surface of a quite detailed and complete overview of national and international laws, executive decisions, and court cases concerning terrorism. I found the wealth of comparative detail in this book both useful and, frankly, a bit intimidating. Roach has obviously worked very hard indeed to gather and marshal material from a wide variety of sources from many disparate cases. I would not be surprised to see his work become a standard reference for scholars interested in its subject. The book should also bid fair to become a leading text on this newly important area of the law.
Griffin, Stephen M. 2009. “The Bush Presidency and Theories of Constitutional Change.” http://ssrn.com/abstract=1341983 (April 21, 2009).
© Copyright 2012 by the author, Tracy Lightcap.