To observers of counter-terrorism in the United States, the contention that the Federal jurisdiction suffers from a dearth, rather than a surfeit, of legislative intervention sounds obtuse. After all, Congress produced the massive USA PATRIOT Act in 2001 and has contributed other weighty responses, including the Air Transportation Safety and System Stabilization Act 2001, the Homeland Security Act 2002, the Terrorism Risk Insurance Act 2002, the Intelligence Reform and Terrorism Prevention Act 2004, the PATRIOT Improvement and Reauthorization Act 2005, the Security and Accountability for Every Port Act 2006, and the Protect America Act 2007.
In that light, this book's founding contention, that “Congress has a lot of work to do …” in counter-terrorism (p. 6), appears misguided. However, on reflection, a focus on augmenting the role of Congressional legislation can be justified on two grounds. The first ground is explicitly noted by the editor: “The war on terror has entered a new phase …”. Within this insight comes the recognition that counter-terrorism is a long-term engagement and therefore requires durable structures. This contention is surely correct and was accepted in the UK over a decade ago by the Lloyd Report (Inquiry into Legislation against Terrorism (Cm 3420, London, 1996)) and then by the structures of the Terrorism Act 2000. The second ground is more implicit and more US-centric. The framing of the problem as “the war on terror”, a frame which is blithely accepted by most American legal scholars, is inevitably a signal by and to the US President to invoke powers as commander-in-chief. As a result, “the first war of the 21st century” is not empty rhetoric but has provided an ideological platform for important and sweeping laws of a kind which would commend themselves to a Stuart monarch. Those laws include detention and interrogation processes (such as at Guantánamo Bay), summary rendition, targeted killing, and surveillance powers. Only after the inevitable shocks of abuse and also after a relatively supine US Supreme Court stirred itself from 2004 onwards to nibble at executive pretensions has Congress offered a legislative response to this power-grab. Its reactions have been sometimes condemnatory and sometimes supportive of the President, including the Detainee Treatment Act 2005 and the Military Commissions Acts of 2006 and 2009. But they have been neither systematic nor comprehensive, so the book's purpose remains valid.
Because of these two grounds, the Congressional stance as a secondary player in counter-terrorism policy-making is claimed to be outmoded. A synthesis of Congressional and Presidential interventions must be sought. That future perspective sets the agenda for this book. It is delivered in ten substantive chapters, which have been contributed by some of the leading legal commentators (including several with practitioner backgrounds) on the US “war on terror”. The substantive themes relate each topic to the existing laws and to the potential for intervention by Congress in the following areas: “Administrative detention”, “Long-term terrorist detention and a US national security court”, “Optimizing criminal prosecution as a counterterrorism tool”, “Better rules for terrorism trials”, “Refining immigration law's role in counterterrorism”, “Modernizing the Foreign Intelligence Surveillance Act”, “National security issues in civil litigation”, “Refining US interrogation law”, and “Targeted killing in US counterterrorism strategy and law”.
The strength of these expositions lies in their deep and well-informed accounts; confinement to just ten chapters in a book comprising some 400 pages allows room for an impressive amount of deliberation. Taken as a whole collection, the other strength of the book is that, avoiding a fault commonly associated with edited collections, its clear and coherent organising theme is faithfully reflected by all contributors.
At the same time, the book reflects three significant limitations. First, the “war on terror” framing is not seriously questioned. Even at the extreme end of potential measures, such as administrative detention, it is barely explained how such a device can be established under the US constitution or the laws of war. The latter is fleetingly considered by Jack Goldsmith at pp. 76–77, where he is content to rely on the curt assertion that “every branch of the US government today agrees that the nation is in an ‘armed conflict’”, as if international law, rather than terror suspects, had fallen into a black hole.
A second problem is that the authors seemingly assume that Congressional mechanisms can be counted upon to deliver worthy legislative products. Anyone who has studied the labyrinthine processes and sordid bargains that drive many of the gargantuan Appropriations Acts in which much crucial counter-terrorism legislation has been lodged might beg to differ. Nor is it explained how the militarism now endemic in US politics is to be surmounted so as to allow space for normal domestic political debate. The evidence from the recent National Defense Authorization Act for Fiscal Year 2011, s.1032 (‘Prohibition on the use of funds for the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba’) is that Congress would rather continue to heap responsibility on the President.
The third shortcoming is that there is insufficient interest in comparative study. The US Federal jurisdiction did not discover terrorism on 9/11, as attested by legislation such as the Omnibus and Diplomatic Security and Anti–Terrorism Act 1986 and the Anti-Terrorism and Effective Death Penalty Act 1996. However, most US legal scholars of terrorism display the opposite trait and thereby evince minimal appreciation that jurisdictions beyond their borders, including France, Spain, and the United Kingdom, have long experienced terrorism and may offer valuable lessons in success and failure. One apparent exception is chapter 1, “Nine democracies and the problems of detention, surveillance, and interrogation”. However, its remit is too wide for its analysis to be other than shallow, while its conclusion demands above all acknowledgement that the ‘US situation is unique’, apparently for its latitude in decision-making and unlimited executive authority (p. 35). As a result, examples elsewhere about how to constitutionalise (and judicialise) counter-terrorism laws, including executive measures, are largely disregarded, amounting to a recommendation to Congress to perpetuate American exceptionalism within counter-terrorism policy.
