Australia / Israel Review

Mention the War

A few weeks ago, former High Court Chief Justice Sir Gerard Brennan told a Law Council of Australia conference that some “incursions on individual freedom and the values of the common law” as part of counter-terrorism laws “may be essential to combat the risk of terror. A peaceful and ordered society needs the rule of law but it also needs to be secure against disruption from external and internal sources.”

Sir Gerard added that while lawyers may know a great deal about crime, they “generally do not know the true nature and extent of the threat posed by terrorism today.”

The former Chief Justice’s point should be obvious – terrorism may be a crime, but to approach the current terrorism problem simply in criminal justice terms is dangerous and wilful blindness.

We are not in a “war on terrorism”, an obsolete term, because terrorism is an illegal tactic, not an enemy. However, we are nonetheless at war – with worldwide adherents to a jihadist ideology that leads them to regard themselves as in a relentless war to the death against us, using terrorism as their primary tactic.

Unfortunately, six years after the 9/11 attacks and following the traumas and problems in Iraq, some otherwise serious people are arguing that terrorism is no more than a nuisance requiring simply police work and some intelligence fine-tuning and sharing. They say using the term “war” is a gross over-reaction, as are any changes to existing laws.

What might have occurred if this “criminal law only” approach had been adopted since Sept. 12, 2001?

The Taliban and their al-Qaeda allies would still rule Afghanistan. A UN Security Council demand for Afghanistan to hand over al-Qaeda’s leaders for trial was already in place before Sept. 11, and rejected by the Taliban. The Taliban not only sympathised with al-Qaeda’s goals but viewed it as a vital ally in their own fight against competing Afghani militias. They would never have agreed to close the training camps and hand over al-Qaeda leaders just because they received a duly notarised extradition request.

With continued state sponsorship and a secure haven, complete with thousands of trained operatives able to plan at leisure, the number of global attacks emanating from al-Qaeda would almost certainly have been much greater. At least a few more 9/11s would have occurred, no matter how good our intelligence or security measures.

In addition to the suffering, chaos and economic disruption this would cause in our globalised world, imagine the boost it would give the al-Qaeda cause. Al-Qaeda does exploit a sense of grievance, but it also tells disaffected Muslims that a holy war to return to the ways of the time of the Prophet Muhammad will not only make Muslims powerful and respected, but also represents God’s will and must therefore inevitably succeed. If it is able to demonstrate that organising repeated large-scale suicide terrorist attacks against the West brings virtually no retribution, imagine how much more persuasive this message would be.

Moreover, every dissatisfied or rogue state would quickly adopt the sponsorship of terror groups as a key foreign policy tool. After all, if the only possible cost is that members of the organisation they sponsor might be arrested abroad, why would states not do so?

Finally, the elephant in the room that reared its head after Sept. 11 – the prospect of terrorism with weapons of mass destruction (WMD) – has not disappeared just because reports about Iraq’s WMD proved inaccurate. We know al-Qaeda was working on WMD in some of its Afghan camps, and that cells abroad have attempted to use chemical weapons, such as ricin, and build dirty bombs.

If, as seems likely, international terrorism had dramatically escalated after 2001, terrorist groups would be striving to constantly top their previous efforts. An attack with WMD, likely dwarfing Sept. 11 in its catastrophic effects, probably would have occurred by now.

Basically, an adherent to a fanatical ideology, ready to sacrifice himself for the sake of a holy war, could not wish for more than to be treated as a “criminal.” He would have absolutely no fear of judicial punishment and would have a plethora of rights to exploit as part of his war – rights to see classified evidence, the right to remain silent, rights to a speedy trial, to be protected from coercive interrogation and unauthorised searches, to habeas corpus, to privacy, and so on. What greater incentive for extremist groups to adopt terrorism as a tactic than knowing that this would be the only response to their unilateral war?

The West has been both successful and lucky over the past six years. Through disrupting the al-Qaeda base in Afghanistan, funnelling the majority of their efforts and recruits into Iraq, plus enhanced intelligence and security measures, the world, while suffering several serious attacks, has avoided anything comparable to Sept. 11. But it should not take an attack of that magnitude to demonstrate that modern terrorism, combining religious fanaticism and the vulnerabilities of globalisation, is qualitatively different from the terrorism of the past. Indeed, the distinguished historian Walter Laqueur pointed this out repeatedly in the late 1990s.

Criminal law measures are no deterrent to the network waging war, via terrorism, in the name of an idealised and extreme version of Islam. The only way to end this threat is to gradually overcome this jihadist ideology and its adherents with a range of measures – legal, intelligence, diplomatic, military, economic and intellectual – just as all these tools were used during the Cold War. If we shortsightedly tie our hands behind our backs in this multi-faceted, ideologically-motivated struggle by addressing the problem purely in criminal justice terms, we will likely lose. And the results will be catastrophic.