How democracies fight insurgents and terrorists

Abstract

Democracies violate some of the laws of war in the Geneva Conventions and some peacetime criminal justice norms when they fight insurgents and terrorists. Restraints on excesses and abuses weaken in a national security emergency. A balance between security measures for effective counter terrorism and maintaining democratic values tends to tip for security at the expense of civil liberties. On the basis of the British experience in Northern Ireland, the Israeli response to the Palestinian intifada, and the Bush administration's “war on terror,” I find that the “maximum security state” improvised by the Bush administration after 9/11 violates democratic norms beyond what is required for security, but that the “business as usual” approach advocated by others is ineffective for thwarting terrorist acts and bringing terrorists to justice. Instead, emergency measures should be grounded on “good intelligence and the rule of law,” which criminalizes recruitment of terrorists and advocacy for terrorism, and which authorizes robust detection, identification, surveillance and search, yet leaves unchanged the rest of criminal justice for arrest, detention, interrogation and prosecution.