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Euro Rights Blog: Defining the Word ‘Terrorism’ - A Classroom Experiment
Sarah Kay is a human rights lawyer specialized in counter terrorism and military intervention. She is a
Trinity College Dublin graduate and started out in diplomatic mediation in Northern Ireland. Her
research focuses on the use of torture and military intelligence in counter terrorism and counter
insurgency.
In the fall of 2014, I conducted an experiment with a class of postgraduate students on the definition
of terrorism. The experimental class, titled ‘Counter-terrorism Approaches: Human Rights Abuses
and Freedom of Information’ was presented as a one-semester elective course to political science
students with track courses in law and journalism. The goal was to present the biggest challenges in
the current field of foreign affairs while debating institutionalized secrecy and human rights abuses.
Over 8 hours, students led the collective conversation by raising issues influenced by media coverage
and their own vision of the fight against political violence in an increasingly unstable world.
The experiment itself took place in the first two hours. The students, first year post graduates
between 22 and 25 years old (8 young women and 2 young men), were asked to brainstorm on a
classroom board their definitions of ‘terrorism’ and their vision of ‘counter-terrorism’. The board was
divided in two between the concepts, and students were told to submit the first ideas that came to
mind - places, names, and concepts - without any interference from me. Initially shy, the students
fast kept the ball rolling and, interestingly enough, the core issues surrounding the definition of
terrorism - or lack thereof - were raised, as well as their biggest fears, concerns and criticisms
regarding the decisions and operations surrounding counter-terrorism. The board turned out not to
be big enough.
The students first submissions conformed to the current political discourse, and focused on events
that had shaped their lives until then: 9/11 and Al-Qaeda. There would later be a consensus that
despite the fact that time (collective history), and distance (location of the battlefields), have dragged
the field of counter-terrorism away from 9/11 and Afghanistan, the constant referral to the events
and the group associated with them continues to shape the narrative around lethal use of force and
sentimentalism in courtrooms. 7/7 quickly followed, until one student mentioned the train bombings
shaking Paris in 1994. The mention of a pre-9/11 occurrence of terrorism - as well as further
mentions of groups such as the IRA and the ETA - led to an important and crucial conversation as to
whether 9/11 itself shaped the way we define, perceive, and use instances of political violence, and if
political violence is always terrorism (part one). The naming of the IRA and Northern Ireland led to a
mention of Hamas and the Israeli-Palestinian conflict, The conversation then shifted as to whether
9/11 itself illustrated a new form of terrorism, different from ‘simple’ terrorism (ethno-political
terrorism, in response to affirmed or perceived occupation and wish for self-determination); if there
could be political violence that was politically, legally and socially legitimate; and if terrorism is a
form of political violence that cannot be seen as legitimate (part two). Finally, students brought up
the role of the media in their own understanding and definition of terrorism: pushing a government
narrative, or a group narrative in response to a terrorist act; needlessly lingering over images of
violence; speculating over possible impending attacks as opposed to reporting fact-based threat
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assessments; and, if fear is a construct, the role of the individual within society to push for or push
back that fear.
All of the students conceded that the definition of terrorism is the definition of fear. If it is true that a
legal definition of terrorism can be construed by the intent of the perpetrator as much as it is by the
consequence of the action, the ‘terror’ portion is subjective enough that terrorism can be fought in
narrative and rhetoric as much as it can be in the battlefield. Later in their essays, many students
referred to refusing the broadcast of ISIS videos even if/when they are of important news value,
demanding higher stakes in journalism when reporting on politicians claiming attacks are imminent,
and to the use of satire as a tool for mocking fear. Many admitted their vision also changed after the
Charlie Hebdo attacks in Paris1.
The Definition of Political Violence
Students chose to define terrorism initially as an act of violence against persons with the intent of
promoting a group’s political agenda. The victims must be intended as random, as opposed to
specific targets, such as elected officials or members of an armed force. The decision was explained
as their vision of fear: terrorism can strike anywhere at any time, and no person is specifically more
likely to become a victim of terrorism than another. The effect of striking a ‘civilian’ population, they
explained, is a tool of pressure against a government or an armed force which is tasked to protect
said population from violence. They cited 7/7 as an example of political violence against persons,
none of which are in a position to individually effect change.
The concept of terrorism as an act of violence against property was a little more difficult. While they
all agreed that terrorism against a corporation or a political office could just as well constitute
terrorism, it did not seem to affect them the same way as violence against persons. The concept of
fear was diminished by the fact that it did not create a loss of life likely to imply the necessary
collective emotional reaction usually garnered by ghastly images of bomb attacks. If terrorism must
contain the element of political violence, the violence must have an irreparable effect, and only loss
of human life could seem that finite and desolate. Later in the course, the students were confronted
with Ryan Shapiro, a PhD candidate at MIT who is also a plaintiff in a case before the Supreme Court
on the AETA2. Shapiro explained that under this law, destruction of factory farms, even if not
resulting in loss of human or animal life, could fall under the definition of terrorism because it
resulted in loss of profit. The class determined that loss of profit could not and should not be placed
on the same scale as the loss of human life. When asked if the criterion of the gravity of a criminal
1
The class ended on 12 December 2014. An exchange with a student taking place in mid-January revealed that
the 7 January 2015 attack on the newspaper ‘shattered’ their vision of France being a ‘safe place’, and foreign
fighters a distant threat that had been politically exaggerated. Asked whether their vision of human rights
compliance for counter-terrorism would change, they agreed they would perhaps be more in favor of increased
surveillance.
2
The Animal Enterprise Terrorism Act (AETA) was passed by Congress and signed into law in November 2006.
According to the New York-based legal charity the Center for Constitutional Rights, ‘the proponents asserted
that existing law had not provided a sufficient deterrent, and that animal rights extremists were using new
tactics … yet in actuality, the language of the AETA covers many First Amendment activities.’ The Center for
Constitutional Rights represented plaintiffs, including Ryan Shapiro, in Blum v Holder. The petition for a writ of
certiorari to the Supreme Court of the United States was denied in November 2014.
2
action of political violence could determine if said action was terrorism, the agreement was that the
gravity would be reflected within the charges and the sentence, but not the definition itself.
Other concepts arose that troubled the group: whether an act of terrorism had to be random;
whether terrorism was inevitably the work of a group, and not an individual; if the act of terrorism
was also defined by its scale or scope. On the last note, I offered them a simple scenario: if person A,
out of frustration, exasperation, and anger throws a brick through a window, does the action
constitute terrorism? (no). If person A strikes at a window belonging to a city hall after being denied
residency papers, does the action constitute terrorism? (debate). If person A strikes at a window
during office hours and causes the injury of persons B and C, working in the office, does the action
constitute terrorism? (depends on whether we can prove intent). If person A strikes at a window
during office hours and kills persons B and C, injuring D, E and F, does that constitute terrorism?
(Maybe, but intent still has to be proven.) If the action committed by person A leads to an
extraordinary session of the city council leading to more office hours for immigrants seeking to
obtain papers, could the action qualify as an act of terrorism? (Debate if all political violence is
terrorism, and if all terrorism is political violence.)
The conclusion was that terrorism is political violence, but not all political violence is terrorism.
Terrorism, according to the sample group, must tick all the following boxes:
intent to harm, injure or kill;
premeditation;
be planned as to lead to political consequences of the action, be they favourable or not
favourable to the perpetrator;
be committed on a scale likely to paralyze the population at a regional or national level;
be committed on the scope of a national, maybe international level of debate surrounding
the act and what it was meant to accomplish.
If person A threw a brick through a window in anger and injured person B, the political motives of
person A could be debated during the trial as circumstantial to the action. The group decided that
the political motives of an act of terrorism must be the only factor, and must have a social, political,
and legal consequence likely to shake the nation and perhaps its allies for some time.
The Legitimacy of Political Violence
Whether or not person A was right in throwing a brick through a window made waves among the
group. When the board filled up with instances of terrorism dating before 2001, the group sought to
make a difference between terrorism motivated by religious extremism and terrorism motivated by a
wish for political and territorial independence. The inclusion of the IRA (without splinter groups) and
the ETA led to a debate on the legitimacy of political violence where the students found it nearly
impossible to reach consensus and, perhaps more interestingly, led to some uncomfortable moments
among them - that they admitted being shy or insecure about.
With all the groups named on the board, I asked if they could identify the grievances of each group. A
student said they could not know what Al-Qaeda wanted to do with 9/11, besides ‘harming the
United States and launching a war’. While this is correct in essence, I asked if any act of terrorism was
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by definition meant to harm the country in which it was committed and launch a war. ‘Not
necessarily a war’, was the answer, but to ‘precipitate a political debate or a solution to a conflict
that has stalled’. It is important to note that this concept of political violence as a means to force an
exit door, or an alternative to a diplomatic resolution, intervened in the first half hour of the
experiment. I was not expecting the concept of legitimacy to make an appearance so soon in the
debate, but the group was keen to make a clear distinction on religiously motivated political violence,
with which they cannot identify or relate, and a last-resort situation for people under colonization
and oppression. I noted that the UN Charter does consider ‘all means necessary’ for selfdetermination3. Is there such a thing as legitimate political violence? I asked. I was met with silence.
I interpret this visible discomfort as two-fold. One, the argument that violence - especially violence
resulting in the loss of life - can be legitimate is often conflated as being perceived as acceptable or
as condoning said violence. The distinction, in political discourse, even more so in legal rhetoric, is
difficult to see when not carefully and painstakingly highlighted as a prelude to the argument of
legitimacy. Two, while it is possible to argue in favour of legitimate political violence in an
anonymous essay or in an individual one-on-one debate, standing out in front of a group while not
being fully aware of the political leanings and affiliations of each member could result in a painful
debate and an association with political violence. It took a certain amount of time to unravel those
two scenarios and explain that the experiment was meant to specifically identify fault lines rather
than find complete consensus on an issue that has divided the legal community to the point of
becoming an ‘issue in focus’ for the UN Human Rights Council. By that point, the students unhinged a
little, and explanations were found.
Claims of independence groups such as the IRA and the ETA were easy to understand: they want
what they believe to be their territory and their resources back from a system of governance they do
not recognize as theirs. It was widely believed among the group that it is possible to find a diplomatic
solution to an IRA or ETA campaign through mediation and compromise on the use of said territory. I
submitted the very much touted government line of ‘we do not negotiate with terrorists’4, which
they found sterile, and pushed forward the example of the Good Friday Agreement, in which all
factions of the Northern Irish conflict were found to sit at a table and find resolution to the conflict.
In the case of colonization, they explained, political violence could not be excused, but could be
legitimate as the only way to express self-determination and obtain it through pressure. I asked if
they knew of any historical instance besides Northern Ireland in which a terrorist group became a
legitimate and legal governing power. There was no answer, because the terrorist label is associated
to an illegitimate quest for power, and a legitimate action of political violence is insurgency. (We
would go back to the conflation of terrorism and insurgency later in the experiment).
As part of the reading for the course, I submitted an article written by Jason Leopold for Al-Jazeera
America, analysing documents obtained from the FBI by Ryan Shapiro under the Freedom of
3
‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security.’ According to Article 51 of the UN Charter, such action
has to be reported to the Security Council and must cease as soon as the Council takes action.
4
‘The United States does not negotiate with terrorists’, per State Department spokeswoman Victoria Nuland, in
regards to the release of Sheikh Omar Abdel-Rahman. (CNSNews.com, 18 January 2013)
4
Information Act5, on the classification of Nelson Mandela as a terrorist and the ANC a terrorist group.
This appeared to be a revelation for the class, all members of which had grown up with the image of
Nelson Mandela as a ‘freedom fighter’ to be honoured and celebrated. I explained that it was not
always the case, as several governments, specifically the British and US governments, perceived the
ANC as a non-democratic and dangerous disruption of the legitimate government of South Africa.
Despite economic sanctions eventually being implemented against the apartheid regime, the frigid
reaction of western states to the oppression suffered by the Blacks of South Africa led to the
classification of Nelson Mandela as a terrorist. Several quotes from President Reagan and Prime
Minister Thatcher supported that view. Things quickly changed when Mandela rose to power, and
the FBI then feared that, on the first visit of the newly anointed President of South Africa, political
violence would be experienced from southern white supremacist groups, what the FBI then classified
as domestic terrorism.
Confronted with a quote from the Court of Appeals in R v F (2007)6, the students reacted negatively
to the position expressed in the quote. Living under oppression, they said, creates and nurtures
situations of profound despair that only violence appears to stir. Populations living under
colonization or dictatorships are often driven to form or join insurgent groups in order to fight with
their own weapons what they cannot obtain through democratic or judicial processes. The line of the
legitimacy of political violence is fluid; it is contextual; it is entirely dependent on the value of the
target - whereas terrorism values a random target. The violence must be stopped if an alternative,
preferably diplomacy, arises. Ceasefires must be respected and enforced; Civilian casualties avoided.
The concept of a legitimate political violence is depicted as a picture-perfect, romanticized idea of
rebellion enshrined in the battles of Central and South America for self-determination and freedom
from US interference. They refer to insurgency of satellite states on the other side of the Iron
Curtain. For this generation, there is such a thing as a freedom fighter, yet, none of them can agree
on what legal lines can be universally drawn.
The legitimacy of political violence shifts, they concluded, according to what is perceived as a threat
at any given time by the government in which the actions are perpetrated, this government’s allies,
as well as the international community at large. The ubiquitous line ‘every man’s terrorist is another
man’s freedom fighter’ was of course used, this time with the historical illustration of Nelson
Mandela being praised by Prime Minister Cameron at his funeral, only a couple of decades after
being vilified by Cameron’s predecessor. The definition of terrorism also bears in itself a nonobjective, non-statutory criteria: terrorism would then be a political affiliation in itself, a political
denomination, and a political crime, not just as committed by the perpetrator, but as labelled as such
by the intended victim. Terrorism is as much a mirror to itself as it is in the eyes of the beholder.
The definition of terrorism was now two-fold:
One component would be legal: universal, objective and statutory;
Second component would be political and reflected in political rhetoric and media coverage.
5
Jason Leopold, ‘FBI Spied on Nelson Mandela during First US Trip’, Al-Jazeera America, 28 May 2014.
R v F, Court of Appeals (2007), EWCA Crim 243: ‘The terrorism legislation applies to countries which are
governed by tyrants and dictators. There is no exemption for criminal liability for terrorist activities which are
motivated by, or said to be morally justified by, the alleged nobility of the terrorist cause.’ (para 32)
6
5
It is also worth mentioning that the concept of riots was raised several times during the discussion on
legitimacy, specifically in relation to the events in Ferguson, Missouri taking place at the time and the
deployment of a militarized police force in response to domestic protests. This will be addressed in
an addendum.
Terrorism as State Violence
The right-hand part of the board dealt with counter-terrorism. The concept cannot be addressed
without having addressed what it is supposed to counter first. The same methodology applied: what
came to mind first when discussing counter-terrorism? The first word to appear on the board was
‘drone’.
As the board filled with concepts of tightened airport security, covert intelligence operations, use of
private military contractors, military deployment - counter-terrorism as a war paradigm was
especially present on their minds - one student asked if it was possible to make a sub-category on the
board. After mentioning the CIA and the NSA, it appeared to them that the issue of legitimacy arose
in counter-terrorism just as well. The methodology did not require my interference, so I obliged. The
lower part of the board quickly filled with many instances of human rights abuses, from the
widespread use of torture to mass surveillance, the killing of civilians in Iraq, images from
Guantanamo Bay and Abu Ghraib, and a hand was raised. A concept this time. Not a place, not a
name, and not an operation. More than a concept, perhaps, it was a feeling. ‘Increasing lack of, loss
of, sense of safety and security.’ ‘From terrorism?’ I asked, making several references to the overpresent threat characterized by foreign fighters in the media the last few weeks. ‘No, from what is
being done by states’, they replied, unanimously.
This represented a defining moment in the class in which the work shifted from a research
methodology on counter-terrorism techniques, and key issues of human rights while countering
terrorism based on the ECHR fact sheet7. I felt compelled to address not only human rights abuses as
they had been revealed since the first days of Guantanamo Bay, but a concern they all expressed as
being disastrous and a fundamental breach of democratic principles: the lack of transparency.
‘Secrecy’, ‘classification’, ‘lack of information’ and ‘reliance on media for information’ became crucial
and core elements of the class and the discussion they were all having, not just with me and other
faculty members, but also among themselves. Although this is a widespread concern among political
scientists and observers, writers, activists and legal scholars, that those concepts permeated and
blurred their own moral compass and trust in government, as well as their idea of what fear and
violence could represent was a dark, ominous moment to witness. For hours onwards, we would
work towards researching means and methods of shedding some light on those operations they
wanted to be able to scrutinize as an educated and informed citizenry.
The difficult and seemingly endless conversation on the legitimacy of political violence took an
unexpected turn I do not anticipate to see in other similar classes or courses throughout Europe. It
took me by surprise and it is a testament to the interdisciplinary approach of the program the class
was part of that it was addressed so naturally: state terrorism.
7
European Court of Human Rights, Terrorism and Human Rights, revised December 2014.
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None of the students approached the concept of state terrorism as a politically rebellious position, or
one that had more to do with a certain belief system as opposed to their own fact-based reflection
from the knowledge they had accumulated. They all conceded relying on whistle-blowers such as
Edward Snowden to understand the extent to which the covert operations were reaching, but they
were still confused about the extreme sentence handed to Chelsea Manning. I asked them to expand
on state terrorism: violence committed by a state, at home or abroad, in the name of fighting
violence, but engaging in the same spectrum of illegitimate action. The illegitimate action had several
components they clearly highlighted:
Illegal, in the sense of a violation of fundamental human rights (right to life) or violation of
the Geneva Conventions, under a war paradigm for counter-terrorism;
Illegal, in the sense of the use of torture in black sites, and experimentation on human
beings. The effectiveness of torture was however debated;
A disproportionate use of violence / lethal force against poorly identified targets, or engaging
into use of lethal force with the knowledge civilians might be killed;
A disproportionate use of violence or force, lethal or not, domestically against citizens or
residents engaging in actions of political dissent;
Wilfully engaging in violent action in the name of counter-terrorism, but with the goal to
disrupt and disorient local populations.
Several of the students expressed discomfort while reading an article I had submitted on the
syllabus, an exposé by journalist Gregory Johnsen on a US drone strike in Yemen having decimated a
wedding party in December 20138. Several questions arose, as to why the CIA was tasked with
conducting strikes, as opposed to military forces; why the coverage of what they deemed a war
crime was so few and not easily available; whether there was international covenants on the use of
drones and their regulation in warfare currently in place that could apply to remote-controlled
battlefields of Yemen. Drone warfare and its complete secrecy, lack of accessibility, and widespread
violence was seen as state terrorism, and terrorism that could constitute a war crime per article 33 of
the Fourth Geneva Convention9. On the question of deployment of ground troops, the issue of state
terrorism was less likely, according to them, because troops are submitted to rules of engagement.
I shared with them, via their emails - the classrooms are equipped with Wi-Fi and most of the
students used tablets during the class to access material - the story of a Congressional hearing for
victims of drone strikes and their relatives from Waziristan, attended by only five members of the
Senate10. I then asked what they believed constituted terrorism in drone warfare per the attempt of
8
Gregory Johnsen, ‘Nothing Says “Sorry our Drones Hit your Wedding Party” like $800,000 and some Guns’,
Buzzfeed News, 8 August 2014.
9
Fourth Geneva Convention of 1949, article 33 (1): ‘No protected person may be punished for an offence he or
she has not personally committed. Collective penalties and likewise all measures of intimidation or terrorism
are prohibited.’ The Commentary of the International Committee of the Red Cross (255-256) further details
that the prohibition meant to prevent a common practice, that of belligerents seeking to intimidate the civilian
population.
10
‘Also missing from the testimony was much of Congress. Only five congressmen appeared at the testimony …
Grayson explained that it's pretty common for only a few members of Congress to appear at such hearings, and
Holt noted that hearings about drones have been held behind closed doors.’ Derek Mead, ‘Not a Militant, but
my Mother: US Drone Victims Testify before Congress’, Vice News, 29 October 2013.
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a definition of terrorism they had come up with earlier. They all believed that the US counterterrorism campaign since the invasion of Afghanistan had placed the world under ‘fear’, that the lack
of scrutiny, review and accountability had made the US forces impossible to reign in, and that to this
day, they were still not sure there had been any progress made regarding Al-Qaeda and a possible
hindrance of terror recruitment. Several mentioned that they believed US policy and state violence
could be a contributing factor to the rise of ISIS. But not all agreed on whether or not ISIS was a
western construct, a bogeyman born from our collective fear of a clash of civilizations post 9/11, or if
in fact it had only fed on insecurity and instability in the region fostered by the invasion and
occupation of Iraq. To their credit, there is still, to this day, no consensus and no valid and universal
threat assessment on the birth and development of ISIS.
When discussing the CIA rendition, detention and interrogation program - RDI, often referred to in
layman’s terms as the CIA torture program - many did not know that it had deep-seated roots in
European countries and had in fact been the topic of ongoing litigation in Strasbourg. The idea that
EU member states could have engaged in torture was repulsive to most, yet understandable to some.
Although drone warfare could easily be an instance of state terrorism and illegitimate state violence,
the use of torture in counter-terrorism could warrant derogation to human rights law. This provoked
intense debate among some of the students, those with human rights activism background, but the
theory of the ticking bomb - famously developed by former Harvard Law professor Alan Dershowitz11
- seemed valid. A conversation then arose on whether counter-terrorism warranted the declaration
of a state of emergency (not necessarily) and whether it needed to seek human rights derogations
(yes). If counter-terrorism detention can be legitimately extended for purposes of obtaining
information, the use of torture could be justified under an assessed and existential threat, as
submitted by one student. The ticking bomb scenario was raised. I interfered, asking to replace this
scenario in the framework of Guantanamo Bay and the CIA torture program. Some agreed that the
RDI program included forms of ill-treatment, but that it did not amount to what they believed was
torture (a widely shared concept). It is important to mention that the release of the heavily redacted
executive summary of the US Senate’s ‘torture report’ interrupted the course that semester, and
shook many foundations. For the purpose of this chapter, however, they did not believe that
detention and ill-treatment of avowed Al-Qaeda or ISIS agents amounted to state violence or state
terrorism, but that any extension of detention or the authorization of ill-treatment must be under
constant and transparent judicial scrutiny.
The Role of the Media in Portraying Violence
Due to the aforementioned institutionalized secrecy, there is heavy reliance on the media established media for the most part - to know about those programs, inform oneself on the ongoings
of government, and what is being done in our name. The class reading reflected that extreme
reliance, showcasing landmark work by the Guardian’s national security editor, Spencer Ackerman on
mass surveillance; the Washington Post’s Cairo correspondent, Erin Cunningham on Egypt’s descent
into a counter-terrorist state; Buzzfeed News’ Yemen correspondent, Gregory Johnsen on drone
warfare in undeclared battlefields; the New York Times’ national security reporter James Risen on
11
Alan Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Yale
University Press, 2002.
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the prosecution of whistle-blowers; and included a reading out of Glenn Greenwald’s book, ‘No place
to hide’, on the effects of mass surveillance on the general population. It has to be admitted that
those choices, although reflecting a somewhat mainstream approach to journalism, were made in
view of my personal affiliations and bias. However, they all have in common fearlessness in their
reporting, that to unmask the official narrative and to discover the flipside of the counter-terrorism,
counter-insurgency coin. All students, some of them wishing to launch a career in journalism,
admitted that the context of repression of information and criminalization of whistle-blowers was
felt as an impediment, a self-consciousness, a doubt in their choice of career.
‘Simple’ data journalism was approached in order to remove the political bias out of the equation. I
confronted the students with several BBC and New York Times headlines reporting on drone strikes
in Afghanistan - claiming a given number of ‘militants’ had been killed in a strike, citing anonymous
official sources - with the numbers crushed and compiled by Naming The Dead (a fantastic project
launched by The Bureau of Investigative Journalism which is aimed at identifying the victims of drone
strikes in Afghanistan and Pakistan) in order to provide an actual and factual assessment of whether
militants had in fact been targeted and killed and develop a figure of civilian casualties, or collateral
damage. The first result, published in November 2014, revealed that so far, only 4% of casualties in
that specific drone campaign were identified as Al-Qaeda members12. The students claimed (once the
shock had somewhat dissipated), that part of the cycle of state violence is perpetuating a narrative as
an objective truth, facilitated by secrecy. Are all western governments lying on their figures? Of
course not, and of course there would be collateral damage, but there is no review of intelligence
analysis and/or threat assessment for targets in the Waziristan campaign. Who is in a position then
to discuss and fact-check figures put forward by the Pentagon, by the Minister of Justice, or by the
Elysée? The media, they said, and lawyers. There is a burden placed on the fourth estate and the
judiciary to establish the truth amid a war mostly fought in the shadows, an argument that was often
repeated and reflected in their end-of-semester essays. There was an absolute need, reflected in
questions asked after class and by email, to ensure there would be judicial accountability and some
sort of government inquiry for any illegitimate and illegal loss of life conducted under the war on
terror.
The ‘counter-terrorism’ part of the board then asked a question. How to restore trust after walking
through the looking glass, and knowing about mass surveillance, mass torture, and covert
deployments around the globe? I then relied on Fiona de Londras and Fergal Davis’ work13 and
submitted the usual either/or dilemma of counter-terrorism accountability: on one hand, the
democratic, constitutional concept of a legislative review, conducted by members of parliament as
elected officials representing the people and their concerns; on the other side, judicial inquiries,
impartiality and fairness, leading to possible prosecution of officials engaging in criminal misconduct.
As De Londras and Davis explained and illustrated themselves, the divide between the two visions is
entrenched and exclusive. According to this group of students, it shouldn’t be. A parliamentary
inquiry leading a judicial prosecution based on facts unearthed during the inquiry was raised, which I
half-heartedly opposed due to the heavy bureaucratic and procedural burden it would raise to gather
reliable evidence and ask victims to testify several times. In essence, it was made important and
12
Jack Serle, ‘Only 4% of Drone Victims in Pakistan Named as Al-Qaeda Members’, The Bureau of Investigative
Journalism, 16 October 2014.
13
Fergal F Davis and Fiona De Londras, ‘Counter-Terrorist Judicial Review: Beyond Dichotomies’, 17 November
2013.
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crucial that all branches of government were still able to function towards restoring a state of
political normalcy, as opposed to a state of emergency against an unknown enemy capable to deploy
at anytime and resurface after several years of conflict, concentrating too many powers without
review in the hands of an executive justifying each decision based on non-factual fear - which is too
easily manipulated and manipulative.
Conclusion
There is consensus that a definition of terrorism enshrined in international law would help frame a
concept too easily flexible and pliable, but nation-state’s perception of what constitutes an
existential threat cannot be overridden.
Although secrecy is inherent and necessary for the proper conduct of intelligence operations, their
reports to branches of government - executive or legislative - on the assessment of a terrorist threat
should be publicly disclosed to the extent possible.
Any counter-terrorism legislation seemingly restricting political dissent in the form of (a) freedom of
speech and (b) freedom of information should be publicly debated and inform legal advocacy groups
of their intent so it can be submitted to scrutiny.
The EU Parliament’s report on the use of national security concepts and term to plead secrecy or
justify unilateral action14 has been considered necessary. The fear spread by terrorism is also a
conflict of narratives and a war of information.
The use of surveillance for counter-terrorism purposes should be curtailed to individuals known of
law enforcement and intelligence agencies, and any interception of communications should be
submitted to a judicially issued warrant by a civil court. KSTs - known or suspected terrorists - should
have access to the evidence held against them in the case of a blacklisting or known surveillance
should they wish to litigate in open court.
Addendum: Is Rioting an Act of Terrorism?
Discussing recent events taking place in New York City following the death of Eric Garner, and in
Ferguson, Missouri following the shooting of Michael Brown, the students observed the deployment
of a militarized police force in residential areas against citizens exercising their right to protest15.
Asked if a police force ‘better equipped than soldiers in Iraq’16 was justified in their intervention, the
14
National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenge, Study for
the LIBE Committee of the European Parliament, Policy Department, Citizens’ Rights and Constitutional Affairs,
September 2014.
15
Darlena Cunha, ‘Ferguson: In Defense of Rioting’, Times Magazine, 25 November 2014.
16
‘This is stuff that was designed for use in battle. It was designed for use to kill a foreign enemy, to annihilate
a foreign enemy, and it’s being used on American streets in American neighborhoods.’ Radley Balko on
10
result was a well resonant ‘no’. Asked if protesters in Ferguson or in New York City could fall under
terrorism acts or terrorism preventions, as initially planned by NYPD Commissioner Bratton17, the
group adamantly supported the protesters and their right to protest as a fundamental civil right, and
as the righteous expression of anger facing a police force that had lost all legitimacy. When it comes
to the legitimacy of political violence, it was reiterated that although no one wishes to see or deem it
necessary, it was an action of last resort in reaction to an act of illegal and illegitimate use of lethal
force by law enforcement against a member of the public. All noted that criminal legislation already
exists to deal with looting and other instances of collateral violence occurring during protests, such
as destruction of commercial locales and personal property, and that terrorism cannot apply to a
population ‘simply seeking to live’. All also agreed that the use of counter-terrorism powers and
equipment for a domestic law enforcement unit was likely to escalate the violence as opposed to
engage in meaningful and democratic dialogue.
11
Democracy Now!, Cops or Soldiers ? Pentagon, DHS Helped Arm Police in Ferguson with Equipment Used in
War, 15 August 2014.
17
The Strategic Response Group (SRG) was designed by Commissioner Bratton ‘for dealing with events like our
recent protests or incidents like Mumbai or what has just happened in Paris.’ J David Goodman, ‘NYPD Plans
Initiatives To Fight Terrorism And Improve Community Relations’, The New York Times, 29 January 2015.