“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.



On December 2, 2015, 14 people were killed and 22 were seriously injured in a terrorist attack at the Inland Regional Center in San Bernardino, California, which consisted of a mass shooting and an attempted bombing. The perpetrators, Syed Rizwan Farook and Tashfeen Malik, a couple living in the city of Redlands, targeted a training event and holiday party organized by the San Bernardino County Department of Public Health. About 80 employees had attended the event. Farook was an American-born U.S. citizen of Pakistani descent, who worked as a health department employee. Malik was a Pakistani-born lawful permanent resident of the United States. It was later discovered that both Farook and Malik supported ISIS’s ideology and had been radicalized.

During its investigation of the San Bernardino mass shooting, the FBI collected the shooter’s iPhone, which is locked down so securely that the Bureau cannot get access in to see what is inside. Since the owner is dead, the government has requested Apple to open the device. In essence, the government wants Apple to build a backdoor to the iPhone. Specifically, the FBI wants Apple to make a new version of the iPhone’s operating system, circumventing several important security features, and install it on an iPhone recovered during the San Bernardino investigation. The software that Apple is being asked to create does not exist today, but in the wrong hands it would have the potential to unlock any iPhone in someone’s physical possession. Apple is refusing to create the software to open the phone stating that doing so would compromise the security of every iPhone everywhere.

The All Writs Act of 1789

The Government is using a 226-year-old law to order Apple to create the software. Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority. The Act states in part that: “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

A Writ is a Court Order. The Act gives courts the authority to issue orders compelling individuals to do things, so long as it is for a legal and necessary reason. However, the All Writs Act, while very broad, is not all-powerful. The very ruling that orders Apple to help the FBI has a caveat of “unreasonable burden” that is part of the All Writs Act. In fact, to the extent that Apple believes that compliance with this Order would be unreasonably burdensome, it may make an application to the Court for relief. That is, Apple can petition the Court not to be compelled to produce the key to open the phone if it can show that doing so would be “unreasonably burdensome.”

Additionally, Apple’s will argue that if the government is utilizing the All Writs Act to make it easier to unlock the iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept people’s messages, access health records or financial data, track locations, or even access people’s phone’s microphone or camera without their knowledge. Google, Facebook, Snapchat, Amazon, Microsoft and Twitter have all signed on to legal briefs supporting Apple in its court case.

History Repeats Itself

Post-9/11 domestic measures implemented in the name of national security included: restrictions on speech and assembly; increased government surveillance; diminished administrative and judicial oversight; new registration requirements and ongoing monitoring of non-citizens that could lead to arrest, detainment, loss of legal immigrant status, criminal charges, and deportation for failures to register; attempts to deport or hold indefinitely non-citizens for minor or nonexistent immigration violations;   secrecy about the names of people detained;   use of asset forfeiture and other expanded governmental powers to obtain information, arrest, detain, and indict individuals for broadly defined terrorism-related activities. In the immediate aftermath of September 11, the United States government arrested and held over 1,000 individuals without filing formal criminal charges against them.

In mid-December 2005, an article appeared on the front page of the New York Times chronicling widespread monitoring of telephonic and Internet communications by the National Security Agency (NSA). These intercepts, according to the authors of the article, occurred with the direct authorization of the President of the United States George H. Bush, and were undertaken without approval or oversight by the judiciary, beginning shortly after the September 11 terrorist 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. On December 19, 2005, President George W. Bush confirmed that the government had secretly and purposefully launched a massive electronic surveillance and communications interception program.

It was subsequently revealed that the national Security Agency had conducted warrantless electronic surveillance before obtaining authorization or consent from the President and that domestic communications had also been intercepted without the usual legal safeguards. Moreover, the NSA did not act alone, it sought and obtained the assistance of various private communications companies, who permitted the NSA to directly access their systems to collect information. Finally, the NSA was discovered to have shared the information that it “illegally” obtained with other investigative agencies. In a 2011 New Yorker article, former NSA employee Bill Binney said that his colleagues told him that the NSA had begun storing billing and phone records from “everyone in the country.” The NSA’s wiretap program was ultimately found to be illegal and NSA surveillance has been since brought within the relevant laws.

In May 2004, the graphic display of photographs of abuse at the Abu Ghraib prison in Iraq after the United States’ invasion shocked the world. One observer noted, “[i]t was Saddam’s torture chamber, and now it’s ours.” The Abu Ghraib scandal was the last straw. Critics began more vociferous in their concerns about other measures that had been adopted post 9/11 that severely curtailed civil liberties such as the indefinite detention of aliens. In a decision that was seen as a victory for champions of civil liberties, the Supreme Court spoke in the case of Hamdan v. Rumsfeld, and struck down the system of military tribunals for Guantanamo detainees established by the Bush Administration.

After 9/11 people’s outrage about the terrorist attacks fueled their willingness to give up many of their civil liberties in exchange for gaining some sense of personal security. Eventually, the infringement on civil liberties by the governments was such that an adjustment became necessary. The adjustment came mostly as a result of public outcry and people’s realization that despite the importance of personal security, a balance between waving their civil liberties and ensuring their safety was necessary.

Privacy and Security

A respect for the right to privacy and personal security are not mutually exclusive. With the appearance of new technologies that could potentially eliminate individual privacy, society is prompted to question whether privacy is such an essential human need as to make it sacred ground where governments are not allowed to enter unless we allow them to do so. The government’s flawed arguments positing that the only way to offer protection is to infringe in our right to privacy have proven not been successful in the long term. In fact, the NSA surveillance program did not prevent later terrorist attacks in the US and elsewhere. The idea that there must be a tradeoff between privacy and security is false. Our willingness to sacrifice our privacy for our security has been short-lived and eventually, the tide has turned back by demand of the people.

With the Apple controversy, we as individuals must decide what matters most to us, to know that there are some areas in our lives that we can keep private, or to allow our government access to the key to intrude whenever they choose in our private lives? Zeid Raad al-Hussein, the U.N. human rights chief has stated that U.S. authorities “risk unlocking a Pandora’s Box” in their efforts to force Apple to create software to crack the security features on its phones. He has warned about the potential for “extremely damaging implications” on human rights, journalists, whistle-blowers, political dissidents and others.

Should Apple create a key to open the terrorist’s phone, do we trust the government to only use the software this one time? Did we learn anything from the NSA scandal? Do we not remember about the NSA’s indiscriminate domestic surveillance of regular citizens? The answers to these questions will determine the future of the right to privacy. The choice to open Pandora’s Box is ours.








The conflict began in March 2011, when pro-democracy protests erupted in the southern city of Deraa, after the arrest and torture of some teenagers who had painted revolutionary slogans on a school wall. Security forces opened fire on demonstrators, killing several, which followed with more people taking to the streets. These events triggered nationwide protests of people demanding the resignation of President Assad. By July 2011, hundreds of thousands were taking to the streets across the country demanding that President Assad step down.

Supporters of the opposition began to take up arms, first to defend themselves from security forces, and later to expel them from their local areas. Violence escalated and a civil war ensued. By early 2012, fighting had reached Damascus and the city of Aleppo. By June 2013, the UN estimated that 90,000 people had been killed in the conflict. By August 2014, that figure had more than doubled to 191,000, and continued to climb to 220,000 by March 2015.

The conflict that began with prodemocracy demonstrations between those for or against President Assad, quickly acquired sectarian overtones, pitching the country’s Sunni majority against the president’s Shia Alawite sect. The rise of the jihadist groups, including Islamic State (IS), the extremist group that grew out of al-Qaeda in Iraq added a further dimension.

Presently, Islamic State has taken control of large areas of territory across northern and eastern Syria, as well as neighboring Iraq, and are now involved in a “war within a war,” battling rebels and jihadists from the al-Qaeda-affiliated Nusra Front, as well as Kurdish and government forces.

The Islamic State, which has been defined by the UN as a terrorist group, has been waging a campaign of terror in large areas of territory in northern and eastern Syria inflicting severe punishments on those who transgress or refuse to accept its rule, including torture, public executions and amputations. Its fighters have also carried out mass killings of rival armed groups, members of the security forces and religious minorities, and beheaded hostages, including several Westerners.


Syria’s conflict has devastated the nation. Current estimates indicate that more than 240,000 people have been killed, including 12,000 children. One million more are wounded or permanently disabled. More than half of the country’s population of 22 million has been forced to leave their homes. Many of them have moved multiple times since the conflict began. According to the United Nations High Commissioner for Refugees (UNHCR), at least 7.6 million have moved within Syria, and more than 4 million have taken refuge in the neighboring countries of Turkey, Lebanon, Jordan and Iraq. About half of those displaced are children. Absorbing the influx of refugees has been an overwhelming challenge for Syria’s neighbors, with strong implications for the stability of the entire region.


Generally, asylum is granted to people fleeing persecution or serious harm in their own country and in need of international protection. Asylum is a fundamental right; granting it is an international obligation, first recognized in the 1951 Geneva Convention on the protection of refugees. At present, 145 countries of the world, including Europe, Canada, the United States and most Latin American countries, are signatories to the 1951 Geneva Convention on the Protection of Refugees.

An asylum seeker is a person who has applied for asylum under the 1951 Refugee Convention on the Status of Refugees on the ground that if she is returned to her country of origin she has a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group. A refugee, in the context of the current crisis, means a person fleeing civil war or a natural disaster, but not necessarily fearing persecution as defined by the 1951 Refugee Convention.

In the EU, an area of open borders and freedom of movement, States have usually used a joint approach to guarantee high standards of protection for both, asylum seekers and refugees. However, the current refugee crisis prompted by the Syrian civil war has resulted such an overwhelming arrival of people to some countries, that it is becoming a challenge to reach agreement among the EU States.

Nearly half a million migrants crossed the EU’s borders from January to August 2015, compared with just 280,000 during the whole of 2014. The majority came from Syria but there are also people who came from Libya, Sudan, Pakistan, Nigeria, Kosovo, Iraq, Iran, Darfur, Somalia and other countries in the hope of a new life somewhere like Germany, France or the UK. Under an EU rule known as the Dublin regulation, refugees are required to claim asylum in the member state in which they first arrive. But some EU countries, such as Greece, Italy, and Croatia, have been allowing migrants and refugees to pass through to countries where they may have better prospects.

Yesterday the European governments reached a divisive deal to impose refugee quotas; they agreed to distribute 120,000 refugees among member states. The decision was reached on a majority vote with the objections of four eastern members. Although Slovakia threatened to take court action against the resettlement quotas, the other three countries that voted against quotas reluctantly accepted the plan, but not without expressing their disagreement.

Hungary’s prime minister, Viktor Orban, accused Germany of “moral imperialism” over the refugee crisis stating that even if Germany decides to take in more refugees, it should not try to force other countries to do the same. Britain refused to take part in the EU refugee-sharing scheme because it does not belong to the Schengen “open borders” zone in continental Europe, and it opted out of the discussions. Later, David Cameron pledged that Britain would take 20,000 Syrians from camps by 2020.


The White House stated last week that the US would take at least 10,000 Syrian refugees in the next fiscal year, which begins October 1. Secretary of State John Kerry announced Sunday that the U.S. will raise the annual number of total refugees it accepts over the next few years. The Wall Street Journal reports that under the new plan, the U.S. will take on 85,000 refugees in the fiscal year 2016, which starts in October, and 100,000 in 2017, up from a current annual total of 70,000. The 2016 total would include the 10,000 Syrian refugees the Obama administration has already said it would like to admit.

According to the UN, worldwide, nearly 60 million people have been forcibly displaced. Of that number, 38.2 million are internally displaced, 19.5 million are refugees, and 1.8 million are asylum-seekers. Under the new plan, the U.S. will accept 85,000 refugees next year. This number is undoubtedly large, but it pales in comparison to the scale of the problem, and what other countries, sometimes much poorer than the US, are doing in response. The top six countries to host refugees are Turkey (1.59 million), Pakistan (1.51 million), Lebanon (1.15 million), Iran (982,000), Ethiopia (659,500), and Jordan (654,100).


There is no easy solution to the refugee crisis in the world. Although the civil war in Syria, and the resulting flux of refugees in Europe has made the problem more palpable in the last few weeks, the sad reality is that there are millions of individuals that are forced every year to leave their homes for fear for their safety, and almost half of them are children.

Countries in the world have a choice to make: they either provide meaningful help in the resettlement of refugees, or they do not. The German Chancellor, Angela Merkel, said that Germany could take as many as 800,000 refugees this year, as compared with the 85,000 the US has indicated it would accept in 2016, and the 20,000 that Britain has committed to accept by 2020.

As long as there are undemocratic regimes in the world, political turmoil, wars and natural disasters happening around the globe, there will be asylum seekers and refugees asking for help. And even though there is no easy solution to the refugee problem in the world, there is something that can be concluded easily, asylum seekers and refugees are people, like us, looking for a safe place to live and raise their families.


In recent weeks, Islamic State militants have decapitated American and British hostages, while four French journalists held by some of the same captors were released earlier this year. A former U.S. ambassador to Mali has said the French government paid $17 million to free the French hostages who were kidnapped in Niger in 2010 and subsequently handed over to Al Qaeda.

The latest hostage shown in an ISIS propaganda video is British journalist John Cantlie. In the video Cantlie says European hostages were freed because of actions taken by their governments. The assumption is that the actions to which he refers have to do with paying a ransom for the release of hostages. That is something Canada, Britain and the U.S. have asserted they will not do. The killing of the American journalist James Foley, a few months after the release of his European colleagues held captive alongside him, has underlined the disparities in national policies towards paying ransom, and leads us to examine the merits of such policies.

Hostage-taking is defined under international law (International Convention Against the Taking of Hostages, adopted December 17, 1979) as the seizing or detaining and threatening to kill, injure, or continue to detain a person in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the seized or detained person. In 2013, all major western countries signed an accord reinforced by a UN Security Council resolution, not to pay ransom to terrorist groups for hostages. However, by all appearances, only the US and the UK have stuck to that commitment. Other European states – including France, Italy, Spain and Germany – have found ways of channeling money to militant groups in exchange for the release of their citizens.

According to reliable sources, Al Qaeda and its direct affiliates have taken in at least $125 million in revenue from kidnappings since 2008, of which $66 million was paid just last year. The countries that have a policy of not paying ransom for hostages claim that payment of ransom money has unintended but inevitable consequences. The most obvious is that the money paid funds terrorist organizations and furthers their goals. Additionally, the paying of ransom inflates the price for other captives, putting the cost beyond the reach of families or employers trying to negotiate privately.

But those who question the policy of not paying ransom argue that when a human life is at stake a government has an obligation to do anything in its power to save that life. On July 31, 2009, three Americans, Joshua Fattal (27), Sarah Shourd (32), and Shane Bauer (28) were taken into custody by Iranian border guards for crossing into Iran while hiking near the Iranian border in Iraqi Kurdistan. Iran subsequently claimed the three were spies but was never able to offer any evidence to support its contention. Sarah Shourd was released 14 months later on “humanitarian grounds.” Fattal and Bauer were convicted of “illegal entry” and “espionage” two years after their arrest and each sentenced to eight years in prison. However, both were released on September 21, 2011 after payment of 5 billion rial (about US$465,000) bail which was arranged by the Sultan of Oman. Regarding the US policy of not paying ransom for hostages, Fattal has said that “[a]s someone who was held and who was released in part because of a ransom, it seems like it’s important to have the U.S. government be supporting U.S. citizens abroad.”

Those against giving in to the terrorists demands argue that paying ransoms backfires because once a ransom gets paid, the terrorist group has an incentive to take more hostages from your country.  So if a country’s goal is to prevent its citizens from being kidnapped by terrorist groups, the argument goes, the wisest thing to do is to set a policy of not paying ransoms. If terrorist groups think the country will pay, they will be likely they are to abduct its people. On the other hand, given the way these kidnappings often take place, namely, that terrorist groups just kidnap a group of people, often not knowing their nationalities, and then decide what to do with their captives, the question of incentive to kidnap depending of nationality is irrelevant.

There are no easy answers to the question of whether to pay ransom to terrorist groups for hostages; however, one has to wonder, if terrorists kidnapped President Obama’s daughters would a ransom be paid? Would a third country be given authority to negotiate their release? Or would their fates be determined by their captors’ wishes?