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. The author would like to thank M.Gregg Bloche, Mark Tushnet, David Cole, Carlos Vasquez, Nancy Sherman, John Mikhail, Eric Muller, Douglas Yarn, Keri Gould, Mark Weisburd, Bobby Chesney, Andy Siegel, Melissa Crow, Matthew Liao, and Andy Grotto for making time to read earlier drafts and/or for offering indispensable advice. The author is especially grateful to Lisa Sternlieb and Miranda Marks for patience and support far beyond any reasonable expectation. 102 COLUMBIA HUMAN RIGHTS LAW REVIEW [37:nnn here is to conduct systematic human rights impact assessments during the formulation of counterterrorism law and policy. These assessments should lead to measures more protective of both liberty and security. I. INTRODUCTION ................................................................................103 II. LESSONS FROM LONDON AND MADRID ......................................106 III. INDIVIDUAL RESPONSES TO TERRORISM ..................................107 A. Cognitive and Emotional Responses...........................................107 B. Moral Strategems ........................................................................112 IV. COLLECTIVE RESPONSES TO TERRORISM .................................114 A. Social Mechanisms of Multiplication and Amplification ...........114 B. Legal Stratagems: Variegated Exceptionalism ..........................118 V. IMPLICATIONS OF OUR RESPONSES FOR LAW AND POLICY ................................................................................................122 VI. EVIDENCE OF COUNTERTERRORISM DISPLACEMENT ...........127 VII. THE EMERGENCY CONSTITUTION AND THE ROLE OF PROCESS.............................................................................................135 VIII. HUMAN RIGHTS IMPACT ASSESSMENTS ....................................140 A. Some Impact Assessment Antecedents.......................................140 B. The Nature and Content of HRIAs .............................................147 1. The Language of Human Rights...........................................147 2. The Nature of the Inquiry and the Analysis ........................148 3. Spheres of Impact..................................................................150 4. Responsibility for Conducting the Assessment....................151 5. Prospective and Retrospective Review .................................152 C. The Role and Functions of Human Rights Impact Assessments.................................................................................153 1. Transparency.........................................................................154 2. Antidote to Security Panics...................................................156 3. Antidote to Legal Exceptionalism.........................................157 4. Antidote to Libertarian Panics .............................................158 5. Calibration and Mediation....................................................159 IX. CONCLUSION.....................................................................................159 2006] WHAT COUNTS IN COUNTERTERRORISM 103 I. INTRODUCTION Since I came to live in the United States four years ago on one of the first flights across the Atlantic after 9/11, I have taught several courses on terrorism and the law. I have often asked my students what they think, but— perhaps unsurprisingly—never what they feel. I have tried to reason dispassionately about terrorism and the legality of our responses to it, and I have encouraged my students to do the same. The suicide bombings in London on July 7, 2005 reminded me of the impossibility of that endeavor. London was my home for more than a decade. I lived there through the IRA bombings of the 1990s. So, on July 7, I spent most of the day frantically trying to contact friends and family by phone or email. Fortunately, they all escaped the bombings. But my brother—a physician at a children’s hospital in central London—mourns the death of two colleagues. Six other co-workers were injured, including a recovery nurse who lost her leg. After my initial panic, I quickly became enraged at the senseless loss of life and limb: more than fifty people were dead and a further seven hundred were maimed or injured.1 But it was not long before another burgeoning emotion was competing for my attention. Little more than two weeks later, and only days after a failed second round of attacks in London on July 21, I was due to fly back to the city for a good friend’s wedding. Just as I had agonized about whether to fly to America only days after 9/11, I struggled again over whether I should come back to London and, if so, whether I should use the London Underground. I knew that I was more likely to be killed on the cab ride to Dulles airport than to be the victim of a terrorist attack. But my fear seemed impervious to statistics. In the end, however, I somehow overcame the fear, flew to London and—after a few expensive cab rides—traveled on the Tube. Weddings tend, of course, to be emotional affairs, but my friend’s was tinged with unexpected sorrow. In the sermon, the priest explained why a bride due to be married in the same church a few weeks later would not be walking down the aisle after all: she lost both legs in the attack. High-profile terror attacks—whether the recent bombings in London, the Madrid bombings on March 11, 2004, or the events of 9/11—can provoke powerful emotional responses. This article, then, is about the distorting effects of these emotive reactions.2 Until very recently, they have been largely ignored by economists and legal scholars who have studied the effects of cognitive 1. BBC News maintains a website with regularly updated information on the casualties of the attack. See BBC News, London Attacks, http://news.bbc.co. uk/1/hi/in_depth/uk/2005/london_explosions/default.stm (last visited Mar. 30, 2006). 2. This is not intended to suggest that emotion is necessarily counterproductive. See infra text accompanying notes 31–32. 104 COLUMBIA HUMAN RIGHTS LAW REVIEW [37:nnn biases on personal and public choices. Yet our emotional reactions to terrorism, particularly to vivid attacks, can create potent biases that not only influence individual decisions about whether or not to take a plane or a train, but also direct and shape nations’ counterterrorism policies. Recent research exploring the effects of strong primary emotions, such as anger or fear, on cognition provides new insights into how systematic biases can transform policy choices, at times in dangerous ways. One notable study, for example, indicates that anger is more likely than fear to make us predisposed to poorly targeted—or even untargeted—retributive responses.3 The vividness of aggressive measures such as the “shock and awe” bombing raids in Iraq also helps explain what makes them more appealing than less spectacular measures that might more effectively reduce vulnerability to further attack. In this article, I draw on this psychological research,4 as well as related work in behavioral law and economics, to show how our individual and collective reactions to terrorism put us at high risk of pursuing policies that impose substantial burdens on others and appear less costly, both politically and financially, for ourselves, instead of choosing more effective counterterrorism programs that are better able to forestall future attacks.5 I term this phenomenon counterterrorism displacement. Policies that impose burdens on others—and therefore tend to appear less costly financially and politically—usually involve interference with civil liberties, in particular the rights and liberties of non-citizens.