A RESOLUTION FOR THE NEW YEAR TO STOP HOME GROWN TERRORISM

 

“Today there were terror attacks in Turkey, Switzerland and Germany – and it is only getting worse. The civilized world must change thinking!”

Donald Trump (Dec. 20, 2016)

“We will find the strength for the life that we want to live in Germany, free, with one another, and open.”

Angela Merkel (Dec. 20, 2016)

Earlier in the week, a terrorist attack carried out using a tractor-trailer to plow through a crowded Christmas market in central Berlin, left 12 people dead and injured 48 others. ISIS (or Da’ish) has claimed responsibility. After the various attacks recently perpetrated—in Orlando, Istanbul, Dhaka, Baghdad, Nice, Paris and now Berlin— there is still no effective international strategy to deal with terrorist attacks by ISIS, and with the support it receives, often by nationals of the countries where those attacks take place. To be clear, the vast majority of the world’s Muslims do not support ISIS, but there are enough who do—including citizens of France, Britain, Germany and the United States—so, we need to start thinking of viable strategies to fight terrorism at an international level that also addresses the problem at “home.” The strategies used so far are not working.

Governments have a number of possible responses to terrorist attacks, beyond the perfunctory initial show of solidarity, some might involve curtailing civil liberties in what is often interpreted as a benign exchange of personal freedoms for security. Other strategies might be more geared to attempting to give Muslim citizens everywhere a greater stake in the peace and prosperity of the countries in which they live, so that they do not feel like outsiders, and are able to develop lasting bonds with members of the community. These personal connections with our community are what make the fabric of a peaceful society, when those connections are made, there is little room for murderer terrorist plots to fester undetected.

In the United States, historically, repression has been the government’s reaction to threats to security. In 1798, in response to concerns about survival of the country, Congress enacted the Alien and Sedition Acts, which made it a federal crime to make false criticisms of the government or its officials. Likewise, during the Civil War, President Abraham Lincoln’s dissidents were imprisoned for criticizing the way the government was handling the war, and the writ of habeas corpus was suspended. During World War II, 110,000 Japanese Americans were forcibly shamefully interned in

concentration camps. The McCarthy era ushered in a witch-hunt that resulted in the persecution of those suspected or merely accused of being communists. Even in more recent history, after 9/11, citizens of the United States suffered a substantial loss of their civil liberties with unprecedented claims of authority to detain American citizens, unprecedented secrecy, and unparalleled invasions of privacy. The Bush Administration established a system of military tribunals for Guantanamo detainees, bypassing Article III courts, which was struck down by the Supreme Court as a violation of the Uniform Code of Military Justice (“UCMJ”).

Europe also has had significant experience with terrorism, and in those situations, European governments have also gone too far in curtailing human rights and personal freedoms. In the United Kingdom, terrorist attacks have been going on since about 1969 with the actions of the IRA which killed over 1,600 soldiers and civilians since the inception of hostilities. The conflict with Northern Ireland grew to its greatest heights between 1970 and the early 1980’s. As a result, the United Kingdom passed various legislative measures aimed at combating terrorism including internment.  The Detention of Terrorists Order of 1972 allowed anyone “suspected of having been concerned in the commission or attempted commission of any act of terrorism or in the direction, organization or training of persons for the purpose of terrorism” to be detained for twenty-eight days. After twenty-eight days, the detainee was released or referred to a commissioner, someone appointed by the Secretary of State. The commissioner would hear the case, but the hearing was primarily an executive procedure and not a judicial one. For example, the detainee could be excluded from the proceeding if national security was at stake, the hearing could be based on hearsay, and the accused did not have the right to call witnesses. In 1980, public criticism of the procedures resulted in the act being repealed.

In Spain, the Basque separatist organization Euskadi ta Askatasuna (ETA) fought for an independent homeland for Basques in four northern Spanish provinces since the 1960s, and their violent acts killed over 1000 people since 1968. Under the dictatorship of General Francisco Franco, authoritarian measures were used to suppress Basque dissidents, who were considered military enemies. To streamline prosecutions against the separatists, the crime of military rebellion was extended to political offenses, banditry, and other acts unrelated to the military to address the actions of dissidents through the use of military trials with significantly fewer procedural safeguards than regular courts. During the final decade of the Franco regime, a secret tribunal known as the “Tribunal del Orden Publico” was instituted to try in secret, and without counsel, those who opposed the regime and who were considered terrorists by the government. After Franco’s death in 1975, Spain transitioned to a democracy and people demanded an abandonment of such coercive practices.

The passage of anti-terrorist legislation affecting civil liberties following 9/11 was not limited to the United States. British anti-terror legislation allowed the government to detain without charge any terror suspect for a period of up to twenty-eight days. In addition to the 9/11 terrorist events in the United States, investigation into the bombings in the United Kingdom on July 7, 2005, the further attempted bombings in the same month, and in August 2006, and the Birmingham beheading plot in January 2007, were considered to justify the use of anti terrorist legislation to stop and search large numbers of people living in Britain. Between April 1, 2001 and March 31, 2005, the police and security services stopped and searched 111,900 of whom approximately 1.4% were subsequently arrested.

Fear and anger about terrorist attacks affect financial markets, consumer spending, air travel, and public opinion toward government. In France, Front National Leader Marine Le Pen was quick to exploit the wave of anger directed towards President Francois Hollande over his handling of the terror threat in last July’s attack at Saint-Etienne-du Rouvray. After the attack, she accused the entire French establishment, both Left and Right, of sharing “immense responsibility” for creating the circumstances in which Islamist terrorists can operate in France. She received a great deal of support following those comments. In times of crisis, people want their leaders to provide protection, thus, whomever articulates the strongest laws and measures that appear to offer safety and security, will receive public support as measured in opinion polls. Unfortunately, the measures often advocated by governments in times of crisis tend to inevitably result in the infringement of personal rights and freedoms without tackling the root problems of disaffection and disconnectedness. Thus, despite all the promises by new leaders, governments change and terrorist attacks continue.

At this juncture, and considering that a new year is about to start, perhaps we ought to consider new strategies to combat ISIS. It is important to keep in mind that despite the history of government’s invasions of liberty and curtailment of personal freedoms in those critical times, there is no evidence that society, as a result, has become any safer. And yet, we still have governments advocating for stricter measures of surveillance, detention, curtailing of immigration, etc.  Now, as the world faces a different threat created by a new generation of Islamist-inspired terrorists, with home-grown terrorists, our leaders must show intelligence and resolve if they are not to fall into ISIS’s trap of allowing the current wave of terror attacks to bring about a true political crisis worldwide. Further reflection and discourse is needed as to the best course of action and on the effect that excessively curtailing civil liberties has on society. If we learn from history, we would understand that a balance between security and respect for human rights and diversity, is necessary to achieve lasting security and long-term peace. Maybe the recognition of this fact could be a universal resolution for the new year: that merely building walls and ghettos will not solve the problem posed by terrorism.

 

THE FEAR OF CYBER ATTACKS, THE GOVERNMENT, AND THE RIGHT TO PRIVACY

In response to a series of major data breaches at US companies in recent months including Sony, Anthem and Target, President Obama unveiled a series of cyber security proposals in his last State of the Union address in January. Obama followed up on this declaration of intent by signing a new executive order during the Summit on Cybersecurity and Consumer Protection organized by the White House at Stanford University in February.

Obama’s executive order encourages the development of Information Sharing and Analysis Organizations (“ISAOs”), providing legal-liability protection to make it easier for businesses and government to share online threat data specific to their industry or geographic region. The order also increases the role of the Department of Homeland Security in the data-sharing process by permitting it to enter into agreements and coordinate the ISAOs.

Mr. Obama’s renewed focus on cyber security has been mostly welcomed by the tech industry, however, the president continues to encounter some of the same suspicions over the privacy of online data that were so effectively highlighted by the Edward Snowden revelations about the NSA in 2013. Although Cyber terrorism is a reality, the concern is that unless there is a balancing between governmental intrusion and the individual’s right to privacy, people’s rights will be violated as they have in the past.

The right to privacy has been affected previously by extraordinary events around the world such as terrorism. While society has not been willing to sacrifice individual civil liberties lightly, it has done so in circumstances where the prevalent belief was that personal security has been threatened. In recent times, surveillance regimes that have been adopted as anti-terrorism measures have had a profound, chilling effect on other fundamental human rights.

The most drastic change affecting privacy in the laws of the United States occurred in response to the 9/11 attacks, when President Bush signed into law the anti-terrorism statute titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, more commonly known as the USA PATRIOT Act. Among other things, the Patriot Act expanded the wiretapping and electronic surveillance powers of federal law enforcement authorities, and increased the information-sharing powers of investigative agencies. It also allowed law enforcement to demand libraries, bookstores, and businesses to produce tangible items, such as papers, books, and records, about persons of interest, while forbidding disclosure of such a demand. It further authorized searches conducted without giving contemporaneous notice of the search or an actual warrant for the search.

At the end of 2005, an article appeared on the front page of the New York Times chronicling widespread monitoring of telephonic and Internet communications by the NSA—National Security Agency.   These intercepts occurred with the direct authorization President Bush, and were undertaken without approval or oversight by the judiciary, beginning shortly after the 9/11 terrorists attacks. This wide-ranging program targeted interception of email and telephone calls with the number of those targeted ranging from the hundreds to possibly thousands. The effect of such wholesale violation of the right to privacy caused uproar among regular citizens who thought that such governmental intrusion on their personal affairs was overreaching and unwarranted.

Acts of terrorism and a fear for our personal security have historically intersected the privacy protections recognized by governments, and at times, served to take a few steps back in the universal recognition of the right to privacy. However, the government’s unsound arguments positing that the only way to offer protection was to infringe in our right to privacy have not been successful in the long term. People have recognized the obvious flaw with the proposition that there must be a trade off between privacy and security. Our willingness to sacrifice our privacy for security has been short-lived, and eventually, the tide has had to turn back by popular demand.

Upon further reflection and discourse on the effect of excessively curtailing civil liberties, the conclusion must be that a balance between security and respect for human rights is necessary in a civilized society. The two are not mutually exclusive; it is possible to demand cyber security and the protection of the right to privacy at the same time. The government must be very careful not to institute measures that will encroach on peoples’ hard fought civil liberties. The efforts made by Obama through his new initiative must carefully be monitored so that the right to privacy of individuals is sufficiently protected both by government and private entities.