Lowering the heat on terrorists would be a fatal mistake

Our efforts have prevented a repeat of the horror of 9/11.

Colin Rubenstein

An edited version of this article appeared in The Age – September 24, 2007

A few weeks ago, former High Court Chief Justice Gerard Brennan told a Law Council of Australia conference that our counter-terrorism laws had made “substantial incursions on individual freedom and the values of the common law” but that such incursions “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.”

Moreover, he 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, whom no-one can accuse of being a raging hawk, was saying something that 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 which 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, otherwise serious people are arguing that terrorism is no more than a nuisance and using the term “war” is a gross over-reaction, as are any changes to existing laws, since mass murder is already illegal. Dealing with terrorism requires nothing further than police work and some intelligence fine-tuning and sharing.

Let’s speculate on what might have occurred if this “criminal law only” approach had been adopted since Sept. 12, 2001.

The Taliban and their close allies al-Qaeda would still rule Afghanistan. There was already a UN Security Council demand for Afghanistan to hand over al-Qaeda’s leaders for trial before Sept. 11. The Taliban, which not only sympathised with al-Qaeda’s goals but viewed them as vital allies in their own fight against competing Afghani militias, did not comply and would never have agreed to close their 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 than have actually occurred. The international community would likely have experienced at least a few more 9/11’s, 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 this would give the al-Qaeda cause. Al-Qaeda does thrive on a sense of grievance, as many have pointed out, but it also depends heavily on a narrative of success and inevitability. Disaffected Muslims are told that a holy war to return to the ways of the time of the Prophet Muhammed will not only make Muslims powerful and respected, but also represents God’s will and must therefore inevitably succeed. If they are able to demonstrate that organising repeated suicide terrorists 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, why would states not do so?

Finally, the elephant in the room that reared its head after Sept. 11 – the prospects 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 in Europe have attempted to use chemical weapons, such as ricin, in attacks.

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, which might dwarf Sept. 11 in its catastrophic effects, probably would have occurred by now. As it is, a terorrist attack utilising WMD remains a serious concern.

Basically, an adherent to a fanatical ideology, ready to sacrifice himself for the sake of holy war, could not wish for more than to be treated as a “criminal.” He would have a plethora of rights to exploit as part of his war – rights to see classified evidence, the benefit of a reasonable doubt, the right to remain silent, rights to a speedy trial, to be protected from coercive interrogation and unauthorised searches, to habeus corpus, to privacy, and so on. And, being ready to die, he would have absolutely no fear of criminal punishment. 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. In fact, the distinguished historian Walter Laqueur pointed this out in his book The New Terrorism in 1999.

We really do have a network waging war on us in the name of an idealised and extreme version of Islam, and whose preferred terrorist tactics make them immensely dangerous in the current globalised world. Criminal law measures are no deterrent, and the only way to stop 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 short-sightedly insist on tying 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 indeed be catastrophic.

Dr Colin Rubenstein is executive director of the Australia/Israel & Jewish Affairs Council. Previously, he taught Middle East politics at Monash University for many years.