National Insecurity and Human Rights: Democracies Debate Counterterrorism Edited by Alison Brysk and Gershon Shafir Published in association with University of California Press Description: All too often, the first casualty of national insecurity is human rights. How can democracies cope with the threat of terror while protecting human rights? This timely volume compares the lessons of the United States and Israel with the “best-case scenarios” of the United Kingdom, Canada, Spain, and Germany. It demonstrates that threatened democracies have important options, and democratic governance, the rule of law, and international cooperation are crucial foundations for counterterror policy. Editors: Alison Brysk is Professor of Political Science and International Studies at the University of California, Irvine. Gershon Shafir is Professor of Sociology and Director of the Institute for International, Comparative, and Area Studies at the University of California, San Diego. Review: “One of the most acute and lucid analyses of the moral and institutional challenges posed for liberal democratic societies by mega-terrorism. Alison Brysk, Gershon Shafir, and a group of eminent scholars address, with practical understanding and moral insight, the question of how to prevent our reasonable fears for our safety from turning into a moral panic that is incompatible with the effective defense of human rights.” —Tom Farer, University of Denver, former President of the Inter-American Commission on Human Rights National Insecurity and Human Rights National Insecurity and Human Rights Democracies Debate Counterterrorism Edited by Alison Brysk and Gershon Shafir Global, Area, and International Archive University of California Press Berkeley Los Angeles London The Global, Area, and International Archive (GAIA) is an initiative of International and Area Studies, University of California, Berkeley, in partnership with the University of California Press, the California Digital Library, and international research programs across the UC system. GAIA volumes, which are published in both print and open- access digital editions, represent the best traditions of regional studies, reconfigured through fresh global, transnational, and thematic perspectives. University of California Press, one of the most distinguished university presses in the United States, enriches lives around the world by advancing scholarship in the humanities, social sciences, and natural sciences. Its activities are supported by the UC Press Foundation and by philanthropic contributions from individuals and institutions. For more information, visit www.ucpress.edu. University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 2007 by The Regents of the University of California Library of Congress Cataloging-in-Publication Data National insecurity and human rights : democracies debate counterterrorism / edited by Alison Brysk and Gershon Shafir. p. cm. — (Global, area, and international archive) Includes bibliographical references and index. isbn-13: 978-0-520-09860-2 (pbk. : alk. paper) 1. Civil rights—Case studies. 2. Human rights—Case studies. 3. Terrorism—Prevention. 4. International law—Case studies. I. Brysk, Alison, 1960– II. Shafir, Gershon. JC585.N37 2007 363.325'17—dc22 2007018438 Manufactured in the United States of America 16 15 14 13 12 11 10 09 08 07 10987654321 The paper used in this publication meets the minimum requirements of ansi/niso z39.48–1992 (r 1997) (Permanence of Paper). Contents Acknowledgments ix 1. Human Rights and National Insecurity 1 Alison Brysk 2. Encroaching on the Rule of Law: Post-9/11 Policies within the United States 14 Richard Falk 3. The United States: Protecting Human Dignity in an Era of Insecurity 37 David P. Forsythe 4. Northern Ireland: Violent Conflict and the Resilience of International Law 56 Colm Campbell 5. The United Kingdom: The Continuity of Terror and Counterterror 75 Todd Landman 6. Torturing Democracies: The Curious Debate over the “Israeli Model” 92 Gershon Shafir 7. Democracy, Civil Liberties, and Counterterrorist Measures in Spain 118 Salvador Martí, Pilar Domingo, and Pedro Ibarra 8. Canada’s Balancing Act: Protecting Human Rights and Countering Terrorist Threats 137 Howard Adelman 9. Germany: State Responses to Terrorist Challenges and Human Rights 157 Wolfgang S. Heinz 10. Conclusion: Human Rights in Hard Times 177 Gershon Shafir, Alison Brysk, and Daniel Wehrenfennig Notes 189 Bibliography 213 Contributors 237 Index 239 To those who stand for rights in the face of fear— especially Miriam and Vivienne. Acknowledgments We undertook this project as concerned scholars and citizens who saw the international abuses and logic of conflict we had each studied for decades in other regions suddenly echoed in our own society.We were also inspired by responses to these legal abuses from global civil society, in this case the per- spectives of our academic colleagues from various democracies who cast a critical eye on the decline of U.S. behavior and norms, challenging us to explain what went wrong. As American civil society finally begins to ques- tion the conduct of the post–September 11 “war on terror,” and concerned publics in other democracies debate counterterror measures inspired or encouraged by the United States, we hope to contribute a comparative analysis that shows that (state) crime does not pay—and reminds us that human rights is the basis for a just and effective foreign policy. A key intellectual catalyst for this project came from Alison Brysk’s par- ticipation in the Transatlantic Dialogue on Human Rights (2004–5), orga- nized by the University of Minnesota’s David Weissbrodt, the University of Essex’s Kevin Boyle, Morten Kjaerum of the Danish Human Rights Insti- tute, and J. Paul Martin of Columbia University, and supported by Marco Stoffel of the Third Millennium Foundation. All of the participants in these Copenhagen and New York sessions helped to shape the agenda for this pro- ject, and contributed greatly to our knowledge of the issues. This volume grows directly from a conference held in February 2006 at UC San Diego and UC Irvine. That conference was attended by all of the contributors, as well as Frank Buijs (University of Amsterdam, Nether- lands). Their willingness to travel long distances on short notice, draft inci- sive analyses of emerging issues on tight deadlines, and engage in days of ix x/Acknowledgments thoughtful, constructive dialogue give this volume whatever virtues it may possess. We are extremely grateful to a collection of institutions that sponsored the conference, whose flexibility recognized the policy relevance of the topic. They include UCSD’s Dean of Social Sciences Paul Drake and Sociology Department, and UCI’s Citizen Peace-building Program, Center for Unconventional Security, Center for Global Peace and Conflict Studies, Dean of Research William Parker, Center for the Scientific Study of Ethics, and Political Science Department. We were also blessed with the enthusiastic and multifaceted support of an extraordinary team of graduate assistants: Helia Jazayeri, Daniel Wehrenfennig, and Joseph Klett. Helia’s identification of literature and par- ticipants, Daniel’s logistical wizardry and contribution to Chapter 10, and Joseph’s work on a comprehensive timeline of events were essential and much appreciated. Finally, a special note of thanks to Nathan MacBrien and UC Press, who showed unusually early and consistent support for the project. Nathan’s vision and encouragement, as well as GAIA as a home for wide diffusion of new work in international studies, transformed a reverie into a reality. 1 Human Rights and National Insecurity Alison Brysk Human rights is the first casualty of unconventional war. Even in liberal democracies, perceptions of national insecurity can rapidly destroy citizen support for international law and democratic values, such as the rule of law and tolerance. Political leaders and defense establishments arrogate the right to determine national interest and security threat, undermining democratic checks and balances and creating a politics of fear.When terrorist violence is framed as a war—an uncontrollable, external, absolute threat to existence and identity—it disrupts the democratic functioning and global ties of tar- get societies. Terrorism has succeeded in destroying democracy when a national security state, without the knowledge or consent of its citizens, tortures and kills detainees, runs secret prisons, kidnaps foreign nationals and deports them to third countries to be abused, imprisons asylum seekers, spies on its citizens, and impedes freedoms of movement, association, and expression on the basis of religion and national origin. But some democracies do better than others, even in the face of over- whelming threats. How can liberal democracies cope liberally? We can learn from comparing experiences and exploring alternatives from the United States, United Kingdom, Israel, Spain, Canada, and Germany. We find that counterterror policies reflect a state’s history of threat and consequent insti- tutional toolkit, the construction of its national interest, and the public’s per- ception of the threat to that interest. Since similarly situated target states advance different counterterror policies, to safeguard rights in the face of threat we must analyze the influence of differing rights values, legal regimes, incorporation of international norms, and legitimacy base for the exercise of authority.