Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2018 Managing Terrorism Fionnuala Ní Aoláin University of Minnesota Law School, [email protected] Colm Campbell Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation 367 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. ARTICLES Managing Terrorism Fionnuala NõÂ AolaÂin* & Colm Campbell** Legal analysis of the now much maligned ªwar on terrorº has been a growth industry in the United States, the United Kingdom, and elsewhere since the events of September 11, 2001.1 A substantial literature spanning multiple legal systems has emerged to address its scope, nomenclature and consequences. How best to respond to and regulate terrorism remains a contested debate intellectually and practically. Modeling of various forms pervades the ®eld. For example, some scholars and policy makers employ a ªbusiness as usualº counter-terrorism model critiquing reliance on exceptional procedures when dealing with violence and in- surgency.2 This model assumes the suf®ciency of the ordinary law to cope with challenges posed by violent actors and other security threats. But most models assume that exceptional legal powers will be adopted to address terrorism, and ex- plicitly or implicitly depict this adoption in terms of some form of norm-exception continuum. Sustained debates pervade both legal scholarship and practice on the acceptance of exceptional (anti-terrorism) norms as lawful and legitimate coun- terpoised with trenchant views on exceptional norms as characterized or de®ned by lawlessness. 3 Such debates, scholarship and analysis are regularly based on supposition rather than empirical knowledge or testing. * Fionnuala NõÂ AolaÂin is University Regents Professor & Robina Chair in Law, Public Policy and Society at the University of Minnesota Law School, and Professor of Law at the Transitional Justice Institute, Ulster University, Northern Ireland. We note our thanks to Ita Connolly for her research work on the empirical aspects of this project. We thank Ami Hutchinson, Jesse Goldfarb and Amanda McAlister for research assistance. Comments by Professors Clive Walker and Louise Mallinder were helpful in the revisions of this article. All remaining faults lie with the authors. © 2018, Fionnuala NõÂ AolaÂin* & Colm Campbell. ** Professor Colm Campbell is an Emeritus Professor at the Transitional Justice Institute, Ulster University. 1. See, e.g., DAVID COLE, SECURING LIBERTY: DEBATING ISSUES OF TERRORISM AND DEMOCRATIC VALUES IN THE POST-9/11 UNITED STATES (2011); CIAN C. MURPHY, EU COUNTER-TERRORISM LAW: PRE-EMPTION AND THE RULE OF LAW (2012); ERIC A. POSNER & ADRIENNE VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007); KENT ROACH, SEPTEMBER 11: CONSEQUENCES FOR CANADA (2003); GLENN SULMASY, THE NATIONAL SECURITY COURT: A NATURAL EVOLUTION OF JUSTICE IN AN AGE OF TERROR (2009); Gabor Rona, A Bull in the China Shop: The War on Terror and International Law in the United States , 39 CAL. W. INT'L. L.J. 135 (2008); Clive Walker, Terrorism and Criminal Justice: Past, Present and Future , CRIM. L. REV. 311 (2004); John Yoo, Courts at War, 91 CORNELL L. REV. 573 (2006). 2. OREN GROSS & FIONNUALA NIÂ AOLAÂ IN, LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE 86±109 (2006). 3. GIORGIO AGAMBEN, STATE OF EXCEPTION 3 (Kevin Attell trans., University of Chicago Press 2005) (2003); GROSS & AOLAÂ IN, supra note 2, at 110±70; Oren Gross, The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the ªNorm-Exceptionº Dichotomy , 21 CARDOZO L. REV. 1825 (2000). 367 368 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 9:367 Security argumentation signi®cantly based on supposition raises important questions as to whether the underpinning assertions in the national security sphere are normatively justi®able. Recognition of such lacunae tends to highlight other gapsÐspeci®cally that claims about the effectiveness of particular exceptional powers also tend to rely upon normative assertions that they ªought to work,º unsupported by veri®able data. Data gaps abound in national security debates, and in legal contestation about whether anti-terrorism regulation is effective or necessary. This article dives into that empirical gap by providing unique data on the operation of detention, arrest, and trial regimes created to counter and manage terrorism in the United Kingdom. While the data is speci®c to the regulation of terrorism in the United Kingdom, we claim that our analysis is useful and applica- ble to the regulation of terrorism by other democratic states, including the United States. We have chosen to focus on democratic states because we do not assume the replicability of these ®nding to non-democratic states, where the pull to legal- ity is not present in the same way, nor the pressure points both external and inter- nal comparable. Emergencies and national security needs present unique challenges to data- gathering by empirical legal researchers; to state the obvious, few countries per- mit outsiders' presence during waterboarding. But, if data on interrogation prac- tices and on exceptional courts' operation can be obtained, they offer a route to evaluating claims about the nature and form of the norm-exception relationship. 4 Moreover, such data offer a means to appraise critical assumptions that pervade national security discourses concerning the ef®ciency, necessity, and rationale for certain forms of macro- and micro-regulation. Courts and custodial settings are particularly important sites in which the state and non-state actors engage in what Charles Tilly called the ªrepertoire of contention.º 5 The contestation spans legitimacy, lawfulness, lawlessness, ef®ciency and human rights-based compli- ance in court and interrogation practices. In the ªstate of justiceº (rechtsstaat), the ideal frequently invoked by democratic states while countering terrorism, 6 this contention is certain to involve legal claims-making by multiple actors in myriad ways.7 We examine both the political and the legal dynamic of contention in this article. 4. See John Ferejohn & Pasquale Pasquino, The Law of Exception: A Typology of Emergency Powers, 2 INT'L J. CONST. L. 210 (2004). For recent applications of these relationships, see I NT'L FED'N FOR HUMAN RIGHTS (FIDH), France: International Fact-Finding Mission Report, Counter-Terrorism Measures and Human Rights, When the Exception Becomes the Norm (June 2016), https://www.®dh. org/IMG/pdf/report_counter_terrorism_measures_human_rights.pdf. 5. CHARLES TILLY, REGIMES AND REPERTOIRES 30±59 (2006). 6. The notion of ªrechtstaatº derives from a doctrine in continental European legal thinking which originated in German jurisprudence. The closest translation into English is ªa state based on the rule of law.º See NEVIL JOHNSON, STATE AND GOVERNMENT IN THE FEDERAL REPUBLIC OF GERMANY: THE EXECUTIVE AT WORK 13 (2d ed. 1983). 7. See Colm Campbell & Ita Connolly, Making War on Terror? Global Lessons from Northern Ireland, 69 MOD. L. REV. 935 (2006). 2018] MANAGING TERRORISM 369 If trial in the special/exceptional/terrorist court amounts to a contest with the state, it is also likely to be a site of interaction and perhaps contestation between the open state (typi®ed by the law-based conventional court), and the secret state (typi®ed by intelligence gathering, interrogation, rendition, and related practices). The secret state is likely to be involved in the process that led to the defend- ant's arrest (through electronic or personal surveillance, or recruiting and oper- ating informers); in the interrogation of the suspect (whether by conducting interrogations or by brie®ng interrogators); and in the trial process when there is an attempt to rely upon or to discredit evidence obtained from intelligence sources. While the nature of the secret state makes it a virtually impossible sub- ject of direct legal research, its operation may nevertheless leave legal traces (for instance, the arrest of a terrorism suspect at home at 4 a.m., has a high probability of being intelligence-reliant). Assembling and triangulating such traces may allow one to construct the elements of the secret state's operation. 8 As such, we can explore the relationship between the law and violent (and other) challengers, assess the claims of the state for particular kinds of legal powers for speci®c kinds of security challenges, and explore the extent to which law is present, absent, or muted in the national security arena. Our arti- cle offers some preliminary roadmaps on how the intersection of empirical legal analysis with contextual framing reveals the complex interplay between the open and secret state, giving a unique insight into the operation of counter- terrorism practices illustrated through detention and trial processes. Part I of this article addresses the challenges and speci®city of obtaining reli- able data on terrorism, and outlines the features and practice of the United Kingdom's anti-terrorist apparatus, speci®cally the arrest, detention, and trial regimes used to manage terrorism from the late 1970s to the present day. Here we explore the overlap between terrorism management systems in the