Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2006 9/11 + 3/11 + 7/7 = ? What Counts in Counterterrorism Jonathan H. Marks
[email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/fwps_papers/8 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/fwps_papers Part of the Human Rights Law Commons 9/11 + 3/11 + 7/7 = ? WHAT COUNTS IN COUNTERTERRORISM Jonathan H. Marks* Abstract The recent bombings in London and Madrid raise the specter of episodic terror attacks in the United States that fall short of the “mushroom cloud” scenarios discussed in the aftermath of 9/11 and the run-up to the Iraq war. Despite the smaller scale of these attacks, they have the potential to generate widespread fear and anger. This article builds on new work in behavioral law and economics to show how these emotional responses can generate systematic biases that motivate and direct counterterrorism policy. These biases should be cause for concern, not least when they lead us to adopt policies that are more burdensome on others instead of those that are most effective at preventing further attacks. Not surprisingly, policies which impose burdens on others—and therefore appear less costly—tend to interfere with civil liberties, particularly those of non-citizens. Recent psychological studies offer an unprecedented opportunity to recognize and understand these biases, and to take action to correct them. One process-oriented corrective that I propose * Greenwall Fellow, Georgetown University Law Center and Johns Hopkins School of Public Health, and Barrister and Founding Member, Matrix Chambers, London; formerly, Director of the Policy Task Force on Lawful Responses to Terrorism after 9/11, Woodrow Wilson School of Public and International Affairs, Princeton University.