Hitting the balance on CT Laws

By Michael Kraft

By Michael Kraft

By one of those coincidences of legislative schedules, three major English speaking democracies have been grappling during the same week with how far to go in strengthening counterterrorism laws.

The stunning defeat of British Prime Minister Tony Blair in yesterday�s parliamentary debate over his proposed new counterterrorism bill came as U.S. Congressional conferees considered curbing some of the investigative authorities granted under the PATRIOT Act. And in Australia, the Parliament is engaging in a debate over new counterterrorism legislation amid well publicized investigations of a possible major terrorist plot in that country involving jihadists. The three uncoordinated debates came against the backdrop of the nearly simultaneous attacks against three hotels in Amman Jordan that killed more than 55 persons, among them guests at a wedding reception.

All three countries, the US, Britain and Australia, strengthened their counterterrorism laws in the wake of 9/11. In the UK, additional changes were proposed after the bombings of the London transport system in July. And all three countries are targets of Islamic jihadists for reasons that predate and go beyond their military involvement in Iraq.

While all three countries have measures aimed at those who support terrorist operations as well engaging in terrorist attacks themselves, there are considerable differences in the legislation and issues in the three countries. However there seems to be an underlying theme to the three debates: how far can the government be trusted to investigate terrorism and deal properly with suspects, and what is the proper balance between national security concerns and individual civil rights.

These debates are not unique to large western democracies. In the Philippines and Kenya and other countries, counterterrorism legislation has been bogged down over similar concerns, especially among the Muslim minority.

In the U.K., Blair was handed a major defeat when 49 members of his own Labour Party defected and joined in the 322-291 vote against his government�s proposal to extend the preventive detention provisions to allow holding a suspect for up to 90 days instead of the current 14. There are some ironies in this debate, and also in the Congressional discussions. Britain was a pioneer in preventive detention legislation, going back to at least World War I. Preventive detention procedures were woven into the laws of many of the former British colonies in Africa. Indeed the abuses in the apartheid era of South Africa were cited by opponents of the Blair government�s proposed extension. The Ian Smith regime in Rhodesia engaged in the practice of detaining Africans for the maximum 30 days and then putting the person back into prison as soon as he walked out the gate.

The large scale defection of members of the Government�s party is unusual in the British Parliamentary system where party discipline is strong. The defections, coming in the wake of opposition to Britain�s involvement in Iraq, has prompted more speculation in the UK press that Blair is weakened and may not last much longer as Prime Minister,.

By contrast, under the current Republican leadership and control, the House of Representatives has become more like the traditional House of Commons in which the leadership pushes through legislation without amendments from the opposition. Without getting into the details of the fast moving conference considerations, the House bill, passed through quickly without amendments from the Democrats, and is generally perceived as giving the Executive Branch, and particularly the Justice Department and FBI, much more authority than the Senate version. Opposition to a stronger version has become more vocal as a result of disclosures that the FBI had in some cases violated procedures over domestic surveillance. But even elements in the business community are against extending the post-9/11 provisions that they say impose excessive reporting requirements on financial transactions and fingerprinting of drivers licensed to drive trucks carrying hazardous materials.

In Australia, Prime Minister Howard�s government is considering proposals to strip dual-nationals of their Australian citizenship and deporting them if they are convicted of terrorism-related crimes. The press council is opposing provisions to strengthen the sedition sections that they predict would put journalists at risk.

Several major elements have shaped these debate in three different corners of the world: the emergence of large scale attacks by terrorists designed to kill as many people as possible instead of smaller actions such as taking hostages to achieve limited specific goals; the resulting emphasis on the need to prevent and deter future terrorist attacks instead of focusing on criminal prosecution of persons after they actually commit the attacks; the issue of how to fashion laws that give investigators the authorities they need to protect the public without opening the door to abuses that might affect innocent civilians, especially during a period of high tension.

Although the U.S., U.K. and Australia all had enacted stronger legislation before 9/11 (beginning with the U.S. Antiterrorism and Effective Death Penalty Act of 1996) additional modifications in the wake of the 9/11 attacks (and the London bombings and the Indonesian attacks that killed many Australians) swung the pendulum toward the security side.

The pendulum may well swing back this month from the immediate post 9-11 �security side.� Each country �whether a major Western nation or not-- needs to find its own balance, based on the perceptions of its own body politics and sensitivities toward minority groups and local circumstances. The challenge remains: how to keep the right balance without letting the terrorists prompt us to over-react. The situation is not static and more legislative changes could emerge in future years. Stay tuned.

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