In two recently published books, Frank Foley and Roger Douglas each address key aspects of counterterrorism from a similar cross-national perspective. Yet they have very different goals. Douglas’s Law, Liberty, and the Pursuit of Terrorism is primarily a description of the legislative and judicial responses of five liberal democracies (Australia, Canada, New Zealand, the United Kingdom, and the United States) to terrorism, both before and after the 9/11 attacks. His aim is to “identify both cross-national differences and areas where legal responses have been or are substantively similar” (p. 1). Foley’s Countering Terrorism in Britain and France, in contrast, integrates varied theoretical approaches (such as neorealism, constructivism, institutional, and organization theories) in order to compare and contrast French and British counterterrorism efforts. His chief purpose is to explain policy patterns and variations by addressing one central puzzle: “Given that they have been facing a similar threat from Islamist terrorism and have perceived it similarly, why have France and the UK continued to display substantial differences in their responses to that threat?” (p. 5).

In Countering Terrorism, Foley explains this puzzle by arguing that each country’s distinct historical norms, institutions, and organizational routines continue to influence their counterterrorist policies. These account for divergent responses in various areas such as intelligence, police, and prosecution (Chap. 2). He tests the explanatory relevance of these three historical legacies in subsequent chapters by providing rich empirical details about counterterrorist legislation, its implementation by security agencies, and legal regimes for the detention and trial of terrorist suspects (Chaps. 3–5).

Foley identifies two models of societal norms. He suggests that the first one, “normative consensus,” is dominant in France where “most actors with influence unite behind the government’s security-oriented response to terrorism” (p. 63). This consensus enables all of the relevant actors (police, intelligence, judges) to conduct “certain types of counterterrorist arrests and prosecutions that other liberal democracies apparently cannot do” (p. 207). This highly flexible array of judicial procedures, in turn, allows security agencies a wide “zone of permissibility” (p. 298), as illustrated by large and indiscriminate counterterrorist operations, deportations, and extensive monitoring. The second model, “norm competition,” entails competing views among decision makers regarding the appropriate balance between liberty and security. It is illustrated by the UK case. The British procedures are less flexible than those that apply in France due to the intense scrutiny of the Parliament, the High Court, and other components of the judiciary, as well as a high degree of contestation expressed by political parties, nongovernmental organizations, and the media.

This societal norm approach is interesting but problematic. Foley focuses on “elite actors’ beliefs concerning fundamental concepts such as ‘security,’ ‘liberty,’ and ‘human rights,’ in the counterterrorism context” (p. 53). Yet he excludes public opinion from this research framework by asserting that it “does not explain the differences between French and British responses to terrorism” (p. 64), and in doing so equates elite opinions with dominant norms in society. This assertion risks overestimating the level of normative consensus in French society while correspondingly underestimating the capacities of British authorities to circumvent civil liberties despite “the battle of ideas waged by civil liberty NGOs and sections of the media” (p. 328). Foley’s approach neglects the fact that there is a vibrant ongoing debate in France about the excesses of surveillance and infringements of civil liberties. French authorities do have to deal with media scrutiny, address criticism from NGOs, and tackle the constraining role of several administrative and legal agencies, such as the Commission Nationale de l’Informatique et des Libertés and the Cour des Comptes. Conversely, British authorities have repeatedly attempted to contravene a series of domestic and international conventions, including key articles of the European Convention on Human Rights.

To his credit, Foley does document these efforts but prefers to emphasize the role played by the judiciary in defying government initiatives on control orders and the deportation of suspected terrorists. Nonetheless, the fact that it is more difficult to implement intrusive and indiscriminate measures in the UK than in France should not lead us to conclude that the British authorities enforce civil liberties provisions. This may explain the intensity of norm competition, rather than, as Foley assumes, norm competition preventing increased authoritarianism in the UK.

Foley builds on this distinction between societal norms by analyzing the character and configuration of specific state institutions in each country. He extensively documents the relationship among the executive, legislative, and judiciary in each case—as well as offering a remarkable empirical analysis of counterterrorist agencies. He contrasts the French integrating interinstitutional system (which permits magistrates to work directly with police and security agencies) to the UK’s separating interinstitutional system (which ensures less contact between intelligence agencies and the prosecutorial/judicial sphere). This institutional approach is detailed, conscientious, and insightful.

The third factor Foley invokes in explaining divergent policy is the impact of the organizational routines of police and intelligence services. He identifies “recurrent interaction patterns” (p. 71) in interagency cooperation. Again, he contrasts the French informal routines through which changes in counterterrorist practices happen “without being formalized or recognized at government level” (p. 113) to the British formal method of change, which is illustrated by the “creation of new agencies or centres, officially announced by the government” (p. 169). Foley provides several examples that substantiate this claim of organizational path dependency. Yet it raises two concerns: First, it remains unclear if routines are not simply an outcome of institutional patterns rather than an additional explanatory variable; second, he admits that “organizational routines can change, but they do so in a path-dependent manner” (p. 72). He does not resolve the question of the conditions under which change is incremental and where it radically diverges. There is evidence that “feedback effects” favor the tendency to do “more of the same.” Significant changes have been introduced in the UK, however, as illustrated by the evolution of the PREVENT program. In France, the shootings by Mohamed Merah in 2012 may not have undermined, as Foley suggests, the confidence of counterterrorist practitioners; but this terrorist attack did undermine the confidence of French citizens in the antiterrorist system. Subsequently, twice as many terrorism cases were transferred from the intelligence service to judicial affairs—the latter prosecutorial system now being perceived as being more efficient in monitoring terrorism suspects.

Like Foley, Douglas offers a dispassionate account of counterterrorist policies. In Law, Liberty, and the Pursuit of Terrorism he analyzes the most controversial issues—notably about increasing authoritarianism in liberal democracies and infringement of civil liberties. Douglas’s objective is to understand the development of counterterror laws in five common-law countries by focusing on “institutional considerations” (mostly how the executive, legislative, and judiciary interact) and on “the role of preexisting beliefs” (p. 9) as measured by roll call votes and poll data. Chapters 1, 2, and 3 examine variations in the definition of terrorism, perceptions of terrorist threat, and the relationship between heightened fears of terrorism and tougher counterterror laws. Douglas lists examples of divergent perceptions and legal responses but, unfortunately, fails to provide any explanatory conceptual framework. Chapters 4 through 9 examine the nature and evolution of different areas of terrorism-related laws, such as surveillance, state secrets rules, proscription, pretrial and post-trial detention, detention without conviction, and torture. He discusses significant judiciary rulings and their impact on constitutional principles and civil liberties. At every stage, an elementary training in law might have been appropriate for the reader, given the author’s vocabulary and form of analysis.

Douglas’s most valuable contribution is his illustration of the claim that law both empowers and constrains governments in their responses to terrorism. Courts, he notes, “have generally given governments and prosecutors what they wanted. The new (terrorist) offences have largely survived constitutional scrutiny” (p. 152). Yet Douglas concludes, “courts have tended to provide more protection for civilian libertarian values than governments or legislatures” (p. 223). This book offers a vivid portrait of the peculiarities of the legislative and judicial responses in each country studied. Yet the reader is left with a series of unanswered questions when it comes to understanding cross-national variation: Why does judicial deference to governments vary from one country to another? Why is Australia’s law more liberal than New Zealand’s? Why is U.S. law, in at least some respects, less illiberal than the UK’s laws? Douglas does allude to some explanatory factors. These include “lawmakers’ underlying political beliefs” (p. 218), institutional culture (and the extent to which it encourages executive deviance), and political partisanship. It remains difficult, however, to make sense of the role of these factors in the absence of a more systematic conceptual framework.

On balance, both Foley and Douglas contribute to the current debate. They raise stimulating questions about counterterrorism, arguably among the most salient and complex challenges that liberal democracies now face, and invite further disputation on the role of law and institutions in addressing the relationship between civil liberties and national security.