The Central Role of Protecting Human

Rights While Fighting Terrorism

Terrorism and Counterterrorism - Comparing Theory and Practice Week 5 Assignment

Eric Vought
Choose one of the following four assumptions to test:
1. Negotiating with terrorists encourages more terrorism
2. Suicide terrorists are rational actors Cyberterrorism does not exist
3. You can fight terrorism without infringing upon human rights
Do this by following the structure as presented in the videos. Your essay should
consist of the following four elements:
1. Origin of the claim: Who has claimed that this assumption can be considered true? (For the first assumption, this would mean: who has said
negotiating with terrorists encourages more terrorism?)
2. Explain why it is important to test this assumption.
3. Outline the evidence for or against this assumption (expert and academic
literature/sources, and if available, empirical data). Conclusion:
4. Explain why you would label this particular assumption true, partly true
or false. (Please note: the term myth was confusing to some students so
to avoid further confusion in the assignment, only use true, partly true
or false)
Since the attacks of 11 September 2001, many commentators have argued
that we face a New Terrorism which fundamentally changes the rules and thus
requires a new approach, including, apparently, revisiting our appreciation of
fundamental rights and liberties or requires new authorities for agencies involved
in counterterrorism.1 At the same time, these commentators tend to be rather
vague on 1) what, precisely makes modern terrorism fundamentally different,
and 2) why new authority is needed.
James Dempsey and David Cole, by contrast, argue that even if post-9/11
terrorism represents, to some degree, new threats,

To the contrary, one of the lessons of the four years since September
11, 2001, is that, even as we face new and more difficult challenges,
the fundamental principles that ought to govern the response of a
democratic society to terrorism remain unchanged: we should focus
on perpetrators of crime and those planning violent activities, avoid
indulging in guilt by association and ethnic profiling, maintain procedures designed to identify the guilty and exonerate the innocent,
insist on legal limits on surveillance authority, bar political spying,
apply checks and balances to government powers, and respect basic
human rights. Departing from these principles, as the military and
intelligence agencies have done, for example, in abusing detainees at
Abu Ghraib prison in Iraq, is not only wrong but actually harms
national security by fueling anti-American sentiment.2
or, in other words, that you can fight terrorism without infringing on human
rights. It is crucial to test this assumption because the very concept of rights as
political trumps against government interference or the wishes of the majority
are inherent to the idea of self-government itself, and (US) Constitutional government in particular3 . If we discard the concept of rights in order to combat
terrorism, we discard self-government and, effectively, we lose either way. As
Dworkin points out, the idea that rights must give way to public safety does not
save us from this conundrum but rather requires us to pay even more careful
attention to rights:
When the divisions among the groups are most violent, then this
gesture, if law is to work, must be most sincere. ... The government
will not re-establish respect for law without giving the law some
claim to respect. It cannot do that if it neglects the one feature that
distinguishes law from ordered brutality. If the government does not
take rights seriously, then it does not take law seriously, either.4
Dempsey and Cole quote Emerson in support of the idea that the authority of
the government to investigate or punish a crime which has been or is about to
be committed is not at issue since, in such cases, any impact upon the right
of an individual to freedom of expression has never been considered to be of
constitutional dimensions.5 This is true because a criminals rights are only
justifiably violated by society when the criminal, in turn, violates the rights,
threatens or takes the life of another: the criminal is self-selected by his or
her behavior rather than ideas, innate characteristics, or actuarial prediction of
future offense (profiling). Of necessity, it is only true when due process guarantees are held inviolate, that society, to the extent humanly possible, ensures that
the criminal is self-selected. Otherwise, we do descend into ordered brutality
rather than remaining a society of law.
It is particularly critical to protect the rights of free speech, free association, and free assembly from overreactions based on fear of terrorism, not only
because not doing so is expressly hypocritical in little-r republican society, but
because engaging in political profiling and guilt-by-association is likely to be

ineffective and counterproductive. It is impractical to monitor all adherents to

a philosophy, members of a group or ethnicity, etc., on the off-chance that they
may commit terrorist acts, attempting to do so tempts agencies to engage in
stereotypes which then lead them to ignore real threats, and [f]urther, if entire groups are identified as enemies, the cohesiveness of the group may harden
against society, substantially diminishing the likelihood that law enforcement
agencies will find cooperative witnesses. If the FBI treats an entire nationality
or group as suspect, members of that nationality or group will in turn treat the
FBI as suspect, making even legitimate investigation much more difficult.6
Counterterrorism is therefore best approached by means, as much as possible, divorced from ideology. As terrorist acts are inherently criminal, regardless
of ideology, this does not restrict legitimate investigation7 . When investigations
are based guilt-by-association, by contrast, they risk alienating the very communities which must be relied upon to produce actionable intelligence on possible
threats8 .
The assumption that it is possible to fight terrorism without violating human
rights is therefore true and the inverse, that it is not possible to fight terrorism without violating human rights is both practically incorrect and logically a
contradiction-in-terms.

Notes
1 Martha Crenshaw, The Debate over New vs. Old Terrorism. Prepared for presentation
at the Annual Meeting of the American Political Science Association, Chicago, Illinois, August
30-September 2, 2007
2 James X. Dempsey and David Cole. Terrorism and the Constitution: Sacrificing Civil
Liberties In The Name Of National Security. The New Press. Scribd ed. 2005. 14
3 Dworkin, Ronald. Taking Rights Seriously. Harvard University Press. Cambridge, MA.
1978. See xi, in particular.
4 Ibid. 204-205
5 Thomas I. Emerson, National Security and Civil Liberties, The Yale Journal of World
Public Order 83, 99 (1982)] as quoted in supra Dempsey and Cole. Terrorism and the Constitution. 43
6 Supra Dempsey and Cole. Terrorism and the Constitution. 44-45
7 Ibid.
8 Human Rights Watch. "Illusion of Justice- Human Rights Abuses in US Terrorism Prosecutions." Columbia Law School Human Rights Institute. July 2014. ISBN: 978-1-62313-1555.
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