Introduction: Home and Away

Liberalism and political violence

In 1891, the Swiss authorities wanted the United Kingdom to send an anarchist revolutionary back to their jurisdiction for trial. Angelo Castioni had shot and killed a member of the Swiss state council while attacking an arsenal and municipal palace in one of the country's governing units (cantons). Three judges (Denman J., Hawkins J. and Stephen J.) refused to order his return.1 Far from going against him, it was the political nature of Castioni's violent act that rendered him safe from extradition. The relevant British law, passed in 1870, had specifically excluded such conduct from its reach.2 In those days in Britain, a high level of foreign-based political violence was tolerated, protected even where it occurred outside the UK's jurisdiction and 'in the course of a struggle for power between two parties in a State'.3 As Mr Justice Hawkins observed, 'one cannot look too hardly and weigh in golden scales the acts of men hot in their political excitement'.4 For his part, Stephen J. observed that 'the shooting on this occasion took place in a scene of very great tumult, at a moment when, if a man decided to use deadly violence, he had very little time to consider what was happening and to see what he ought to do, and that, therefore, he was committing an act greatly to be regretted'5 - but not sufficiently regrettable as to deprive him of his protection from extradition.

It is hard to imagine a judge saying the same about a political killing today. Now people like Castioni would not have a chance; actions similar to his are excoriated as beyond the bounds of morality wherever they occur, a disease to be rooted out of our liberal body politic at all costs and regardless of motive, context or location. Of course, the contemporary political subversive has a far wider range of destructive tools at their disposal (and a greater capacity to wreak harm), than ever the likes of Castioni had. There may very well be several good reasons for why the contemporary 'terrorist' is treated differently, and we shall come to these in the course of this book. The political defence against extradition has, however, clearly faded away,6 and, with it, its Victorian assumptions about liberty and freedom for the foreign fighter.

Even mere plotting against transparently pernicious regimes abroad now potentially attracts the hostile attention of local prosecutors. In one recent case in Britain, a person found to have been planning a violent revolt against Colonel Gaddafi in Libya could not rely on the purity of their ambitions: 'There is no exemption from criminal liability for terrorist activities which are motivated or said to be morally justified by the alleged nobility of the terrorist cause.'7 For this English Court of Appeal, giving judgment in 2007, 'terrorism [was] an international modern scourge',8 and so, while 'the call of resistance to tyranny and invasion evokes an echoing response down the ages',9 there was 'nothing in the legislation' on terrorism which 'might support [the] distinction' argued for by the accused between resisting democratic states (wrong) and fighting authoritarian states (not wrong).10 This new moralism does not stop at individuals who have engaged in or planned acts of violence: even if they do nothing themselves, members of 'terrorist groups' risk punishment by reason of their affiliation.11 And anti-terrorism laws not only collude in the removal of people like Castioni into the hands of their enemies - they reach into domestic subversion as well, playing havoc with civil liberties and personal freedom under cover of a promiscuously defined national security.

In this book, I explore how this change in sentiment has come about and the effect it has had on our system of laws - indeed, on our liberal political culture as a whole.12 The 'our' here reaches beyond the United Kingdom to encompass Europe, North America and democracies across the world. With the attacks of 11 September 2001 ('9/11'), the subject of 'terrorism' seems to have (literally and metaphorically) exploded onto the scene, with scores of violent disputes with power around the world (some justified, some not) being repackaged as part of a global movement of disorder rather than being seen as the discrete, locally based challenges to authority that they usually are. The world is this book's stage, albeit the driving force behind the changes in the law that it describes has been European and American in origin. The field of anti-terrorism law now extends beyond democratic borders to the wider world, where despots everywhere welcome it with open arms. The laws that these concerns about terrorism have generated are important, and their impact on civil liberties severe. I look at these legislative and executive acts (international, regional and national) closely, arguing that they have fundamentally affected the shape of our democratic culture, and that they are here to stay whether or not terrorist atrocity remains as a central source of anxiety.

Law and the study of (counter-)terrorism

I began this book thinking I was writing a book about the history of terrorism. I had done something similar over thirty years ago,13 and it nagged me that I had never built properly on that early book with later editions in order to have a more consistent engagement in the field. I soon realized that any such project was a futile endeavour in the here and now. What had struck me as original in 1991 now seemed passé. New work had emerged, much of it original and critical in a way that made anything I might now want to say seem to be verging on the superfluous. More to the point, I had become too much of a lawyer in the decades since I had unwittingly engaged in what I now knew to have been an interdisciplinary endeavour, mixing history, international relations and politics with (just a dash of) law.

So I thought 'why not turn my disciplinary commitment into a strength?' This book on the rise and rise of anti-terrorism law is the result. There are many excellent treatises on the law of terrorism (international and national),14 and important books too on the history of and policies behind counter-terrorism.15 But few of the general treatments of the subject, no matter how compendious, have specific sections or chapters devoted to anti-terrorism law as such.16 My particular interest here has led me to focus on the development of such laws rather than on their current substance - less a snapshot of the present than a reflection on how we got where we are today.

But this then created a further difficulty: what causes this or that particular law to be enacted is often a question requiring answers that go beyond law. This has particularly been the case with anti-terrorism law. The field encompassing this brand of law is no product of careful academic study or a law commission enquiry into this or that lacunae in the legislative status quo; it has been hurled onto the statute book by the waves of political, diplomatic and international energy that have already done so much to determine its shape before it arrives. Much of Part One of this book, on the origins of anti-terrorism law, is therefore light on legal detail - slightly disconcertingly perhaps, but in the circumstances of this branch of law I think inevitable. The law comes into its own when the subject of terrorism itself does: in the aftermath of the attacks on New York and the Pentagon on 11 September 2001.

Where does this volume fit in intellectual terms? There are deliberate echoes of Boukalas's work in my choice of title,17 and I have found that author's well-argued disinclination to follow certain well-established politico-legal philosophers in this area to be very persuasive.18 At very least my book is a contribution to the necessary 'historicisation of terrorism' that has been evident in recent years.19 As my LSE colleague Audrey Alejandro and my research student (now Dr) Mattia Pinto wrote when considering Foucault's impact on the law: 'the construction of legal categories is an important vehicle for producing legal meanings'.20 This is what I think this book is mainly doing: constructing a genealogy of a particularly important legal term ('terrorism') and as a result of doing so submitting the origins and growth of anti-terrorism law (its main focus) to close examination. As Charlotte Heath-Kelly has noted, '[t]hreats and crises are socially constructed, not objective realties',21 and anti-terrorism law and practice have become the bridge between the construction of terrorism as a security crisis and its manifestation on the ground. My book fits within the literature as a contribution from a lawyer to the critical terrorism studies movement that has done so much to energize the field.22

Security versus liberty

Despite their immense power as a driver of what followed, the attacks of 11 September are not the start of our story. To get to the bottom of our subject, to understand how it has emerged and enjoyed the kind of success that I am describing here, we need to go behind that pivotal event. We need in particular to understand the political-cultural environment in which the post-9/11 laws have come to be enacted.23 Many of those laws are...