4 Cody Dissertation Final

UC Berkeley UC Berkeley Electronic Theses and Dissertations Title Hijacking Counterterrorism: The Rise of National Anti-Terrorism Laws After 9/11 Permalink https://escholarship.org/uc/item/21s5t4jv Author Cody, Stephen Smith Publication Date 2012 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California Hijacking Counterterrorism: The Rise of National Anti-Terrorism Laws After 9/11 By Stephen Smith Cody A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Sociology in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Marion Fourcade, Chair Professor Neil Fligstein Professor Jonathan Simon Fall 2012 Copyright 2012 Abstract Hijacking Counterterrorism: The Rise of National Anti-Terrorism Laws After 9/11 by Stephen Smith Cody Doctor of Philosophy in Sociology University of California, Berkeley Marion Fourcade, Chair In less than a decade 142 countries enacted or reformed more than 260 counterterrorism laws worldwide. The new laws, viewed as a whole, represent a broad expansion of state powers to investigate, detain, prosecute, and imprison individuals. This dissertation is the first effort to document the rise of counterterrorism laws worldwide and evaluate their impact on individual rights. Drawing on national legal data collected in collaboration with the Program on Terrorism and Counterterrorism at Human Rights Watch, the work reveals that counterterrorism develops out of a confluence of power politics and cultural ideas in world society. It also shows that state officials frequently use counterterrorism laws to secure their authority and cloak repressive enforcement tactics in rule of law. ! "! Table of Contents Acknowledgements ii 1: Introduction 1 2: Interrogating Terrorism 9 3: The Rise of Counterterrorism Laws Worldwide 36 4: Counterterrorism as Cerberus 68 5: Counterterrorism and Individual Rights 83 6: Counterterrorism Enforcement 102 7: Conclusion 127 References 132 Methodological Appendix 154 ! "! Acknowledgements I am deeply indebted to my dissertation committee members, Marion Fourcade, Neil Fligstein, and Jonathan Simon. Their insights, feedback, and support shaped this work in profound ways. My greatest debt goes to my wonderful chair, Marion. Without her encouragement and mentorship this dissertation would never have come to fruition. Other faculty at Berkeley also guided the development of this project. Sandra Smith and Barrie Thorne steered me through my early years in the graduate program with extraordinary kindness. Catherine Albinston, Lauren Edelman, and Calvin Morrill provided valuable comments on early drafts and treated me as an adopted member of the Jurisprudence and Social Policy Program. At Berkeley Law, Kathryn Abrams, Robert Berring, Laurel Fletcher, Marci Hoffman, Katerina Linos, and Eric Stover provided advice and mentorship. Carolyn Clark, Bill Gentry, Anne Meyers, and Elsa Tranter provided invaluable administrative support. The custodial team at Barrows Hall made late nights more bearable. The work also benefited from conversations with participants of the Empirical Studies Workshop, the Law and Society Workshop, and the Legal Scholarship Workshop. I am extremely grateful to many graduate students for their intellectual contributions and friendship during my time at Berkeley. In the sociology program, Rachel Best, Ryan Calder, Sarah Garrett, and Sarah Anne Minkin deserve special mention for their comments on this work and companionship over the years. At Berkeley Law, Alex Jadin, Katherine Piggott-tooke, Mohammad Tsjar, and Laura Vichinisky demonstrated a high tolerance for sociology talk. I am also thankful to Trevor Gardner, Alexa Koenig, and Daniel Kluttz for our ongoing conversations about the field of law and society. A number of people facilitated my fieldwork at Human Rights Watch (HRW). Joanne Mariner, former Director of the Program on Terrorism and Counterterrorism, graciously provided access to the HRW legal archives and took me on as a legal intern for six months. Stacy Sullivan, Andrea Prasow, and Letta Tayler welcomed me as a researcher and team member. Outside of the office, Elizabeth Berryman, who I’ve considered family for as long as I can remember, kept me energized with morning runs in Rock Creek Park and evening pints at the Raven. Her partner, Zoe Chace, always greeted me with big hugs and never complained about how often I crashed on their futon. My longtime friends Joshua and Elizabeth Weishart deserve special recognition for listening to my discouraged rants and responding with cupcakes and bourbon. My partner, Jude Joffe-Block, read chapter drafts between her busy deadlines as a radio reporter. Her thoughtful commentaries demonstrated her sharp mind and helped eliminate make-believe words. I am also grateful to her parents, sociologists Fred Block and Carole Joffe, who served as sounding boards and reassuring voices during the writing process. My brother, David Smith, kept me grounded during graduate school. His daily ! ""! work as a nurse put my own daily work in perspective. Finally, I want to thank my mother, Barbara Cody Smith. She read every draft of this dissertation with more enthusiasm than I could muster as the author. The work is much better for her edits and feedback. She also deserves credit for instilling in me an enduring commitment to human rights. Life would be easier if I didn’t feel the need to live up to her example, but I suspect it would also be far less rewarding. ! """! Chapter 1 Introduction ! "! In September 2002, Billy Collins, the poet laureate of the United States, read his poem “The Names” to a special session of Congress held in Federal Hall in New York City. It was only the second time that Congress convened a session outside of the capitol building since moving to Washington. The first time Congress had celebrated the bicentennial of the founding of the nation in Philadelphia. Vice President Dick Cheney and House Speaker Dennis Hastert presided over the event, which was held to remember the 9/11 terrorist attacks. They stood before a large American flag. The location was selected for its historical significance. George Washington took the first oath of office on the balcony of the Federal Hall building. More than 250 house members and about 50 senators attended the session to show their solidarity with New York citizens and their commitment to combating terrorism.1 Collins began to read: Yesterday, I lay awake in the palm of the night. A soft rain stole in, unhelped by any breeze, And when I saw the silver glaze on the windows, I started with A, with Ackerman, as it happens, Then Baxter and Calabro, Davis and Eberling, names falling into place. As droplets fell through the dark…2 As Collins’s continued his words evoked the tragedy itself: “Names rising in the updraft of buildings.” And, at the same time, the poem resonated with more universal themes of personhood and loss: “The bright eyed daughter. The quick son. Alphabet of names in a green field.” Written after the United States began military operations in Afghanistan, but before the invasion of Iraq, before the photographs of abuse at Abu Ghraib, before the Office of Legal Counsel released the torture memos, before the military commissions at Guantanamo, and before revelations about the scale of coercive interrogation, Collins’s words nevertheless seem to foreshadow larger human costs: “Names silent in stone. Or cried out behind a door. Names blown over the earth and out to sea… So many names, there is barely room on the walls of the heart.” As the session closed, the audience joined the Stuyvesant High School Chamber Choir in singing “God Bless America.” Some members of the divided congress held hands.3 The nation and the world stood united against a common darkness. The following work explores some of the costs of the “war against terrorism.” While state efforts to combat terrorism have always had consequences for those suspected of terrorism, the rise of counterterrorism as a near-universal agenda after 9/11 has consequences far beyond individual suspects. Counterterrorism laws have significantly expanded the authority of state officials to investigate, detain, prosecute, and imprison a wide array of individuals with minimal judicial oversight or due process. This work is a !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Carl Hulse. 2002. “Congress at Ground Zero: The Special Assembly,” New York Times, 7 September. 2 See Appendix: 1.1 for complete poem. 3 Carl Hulse. 2002. “Congress at Ground Zero: The Special Assembly,” New York Times, 7 September. ! #! first effort to understand this fundamental transformation at a global level by systematically compiling, coding, and analyzing national counterterrorism laws worldwide. The research documents the proliferation of national laws around the world and seeks to evaluate the potential consequences of this legal diffusion for individual rights worldwide. The study is more than a descriptive account of the rise of counterterrorism laws after 9/11 or a sociological analysis of a contemporary human rights issue. Animated by a series of questions related to the construction and globalization of law, the study seeks to illuminate processes of transnational lawmaking. How are legal categories socially constructed within and across states? How do dominant states and international organizations reshape national law? What role does culture play, if any, in the transnational

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