Published in Law & Politics Book Review 13(12) (December 2003).
Cite as: Deflem, Mathieu. 2003. Review of ‘Terrorism, Freedom, and Security: Winning Without War,' by Philip B. Heymann. Law & Politics Book Review 13(12).
Philip B. Heymann may rightly count among the foremost experts on counter-terrorism policy in the United States. Both Heymann’s expertise on the merits and limitations of existing counter-terrorism programs and his learned judgment on the appropriate ways to respond to the threat of terrorism are solidly rooted in his elaborate and long-standing scholarly activities in the areas of comparative criminal law, law enforcement, and international security. Presently the James Barr Ames Professor of Law at the Harvard Law School, and formerly a Deputy Attorney General of the United States, Heymann is exceedingly well placed to offer a useful perspective on the so-called “war on terror” in a manner that takes into account important considerations related to the characteristics and necessities of our legal and political systems in addition to the inevitable pragmatic ideals by which counter-terrorism policies need to abide. Not reading Heymann simply means not taking seriously the present problems surrounding terrorism. From the viewpoint of Heymann’s legal approach, also, concerns over the response to terrorism intimately relate to questions, and the proper search for answers, on terrorism-related issues associated with law and courts that must be at the heart of any political science on terrorism and counter-terrorism.
Most distinctly, Heymann’s book is a critical engagement with the metaphor of terrorism as war, a metaphor which has influenced many, if not all, of the counter-terrorism policies that have been implemented by the Bush administration in response to the tragic events of September 11. Briefly, Heymann argues that the war metaphor is not only problematic in light of important civil and human rights concerns, it is also misguided in failing to take into account the multifarious nature of terrorism. According to Heymann, terrorism ought to be approached from a much broader strategy that should involve diplomacy, law enforcement, intelligence, and international legal arrangements, besides limited and well-targeted military interventions. Starting with this premise, Heymann proceeds to criticize many of the currently existing arrangements and practices implemented against terrorism and offers important food for thought to develop alternatives.
In the first part of this thought-provoking book, Heymann readily dismisses the usefulness of war as a metaphor to fight terrorism, because of the lack of a clearly defined enemy and the non-temporary nature of the terrorist threat. War has been much more, of course, than a mere symbolic metaphor following 9-11. Indeed, since that fateful day, the United States has moved quickly and resolutely from a policy that placed little attention to prevention against terrorism at home to the brutal realization that terrorist groups were capable of mass destruction at a hitherto unprecedented scale. But retaliation abroad was once again the most immediate choice of response, much like it had been during the presidencies of Ronald Reagan (who ordered bombings in Libya), the first George Bush (who waged war against Iraq), and Bill Clinton (who ordered military strikes in Baghdad, Afghanistan, and Sudan). Faced with few options for dealing with the new challenge of Al Qaeda as a well-organized and sizeable group bent on committing its atrocities across several nations, President Bush responded with a drastic expansion of the notion of international war to target foreign groups who, sheltered under the protection of certain autocratic states, had proved to pose a distinct and real threat to the United States. The military action in Afghanistan, Heymann resolutely claims, was a wise strategy. But as a long-term strategy, the war metaphor has also been dictating much of the U.S. anti-terrorism agenda, which according to Heymann, comes with considerable shortcomings and risks. Terrorism includes a large variety of events and targets, so that attempting to attack them from the viewpoint of war is readily short-sighted. Instead, the objectives and strategies of counter-terrorism must reflect the complexity of that reality. Besides cooperation among intelligence and security agencies, a mixture of human resources and technological tools, and arrangements at legal, as well as political-diplomatic levels, any long-term counter-terrorism arrangements must also involve cooperation with other nations. International cooperation needs to be built up respectfully by diplomacy and negotiation, not forced upon other nations by means of an either-with-us-or-against-us attitude.
Detailing some of the concrete steps that need to be taken to counter terrorism, Heymann distinguishes various policies. At the most general level, the sources of discontent that function as the motivation for potential terrorist attacks need to be reduced. The promotion of democratic ideals and human rights is a key strategy in this respect. Next, deterrence schemes against selected individuals, groups, and states ought to be developed through police actions, military interventions, and economic threats. Identified terrorist suspects, moreover, should be effectively prevented from entering the United States and from being able to attack U.S. targets and resources. Intelligence gathering on a variety of groups and persons will be central to such plans. And, finally, at the most concrete level, terrorist groups and people should be disrupted in their activities by means of criminal prosecution and detention.
The comprehensive strategy Heymann suggests requires action on behalf of the State, Justice, and Treasury Departments, the CIA, FBI and Homeland Security, and not just the Department of Defense. Intelligence takes on a special place in the activities of these agencies for it can lead to identify the primary targets of counter-terrorist programs and thus lead to informed choices about which programs to implement under which circumstances. The scattered nature of intelligence before September 11 needs to be replaced by a more coordinated system that can move from a broad surveillance of likely suspects to a more precise focus on a critical core of active members of terrorist groups. Such intelligence activities are also to be carried abroad, again requiring international cooperation. Ironically, effective cooperation for surveillance of terrorist groups and individuals may be more easily accomplished in autocratic states that tend to have elaborate systems of counter-terrorist policing and repression. Yet, mutually beneficial alliances between the United States and foreign countries must go hand in hand with a moral-ideological commitment to promote the condemnation of terrorism as an option under any and all circumstances.
The most effective strategies against terrorism are not always the wisest, as they may conflict with civil liberties and democratic norms. Heymann therefore suggests weighing the effectiveness of counter-terrorism programs in diminishing the overall threat of terrorism, the danger such strategies may pose to fundamental liberties, and the role they play in reducing public fear. Ideally, only those programs that are acceptable by all three standards would be implemented. Analyzing the Bush administration’s practices against terrorism since 9-11 reveals a more problematic picture. Most clearly, important legal precedents have been set reducing the burden of proof in terrorism cases and lowering requirements for presentation of public evidence before detention. Also to be criticized, according to Heymann, is the imposition of criminal punishment without sufficient regard for due process requirements, such as the existence of precise criminal statutes and the use of judges and juries.
Among the various tools used against terrorism, Heymann pays special attention to profiling certain (Arab) groups and the use of torture. The latter method was recently argued by Alan Dershowitz, one of Heymann’s colleagues at Harvard Law, to be acceptable under the specified circumstances of a “ticking bomb”—that is, when the danger of a tragedy is immediate and will happen unless it can be prevented with information forced from a suspect. Heymann disagrees, contending that torture is a practice that should never be legally approved (which does not mean, of course, that it is not at times practiced as the only means to an end). International cooperation is once again fundamental to the development of effective and sound counter-terrorism policies. Such cooperation, however, ought to build upon a sense of mutual respect and recognition of the commonality in anti-terrorist objectives among nations. Although the United States government can act (as it often has) unilaterally based on its might as a superpower, it would in the long run benefit from respecting the provisions of international law. The moral leadership of the United States is a necessary condition for the nation’s political leadership on a global scale.
In the final part of this well-balanced book, Heymann considers some of the necessary steps to protect the nation from terrorism without creating an intelligence or police state. First, domestic intelligence functions must be kept out of the hands of the CIA and the military, and domestic and foreign intelligence should be conducted by separate agencies. At home, internal surveillance missions must be clearly defined in terms of scope so that legitimate protest and dissent will not be caught in the police dragnet aimed at serious suspects. Special means of policing and intelligence must be related to clearly defined purposes, and, guided by statutorily defined legal powers, intelligence activities should be subjected to democratic oversight. Alternative counter-terrorism tactics should be developed and implemented, but critical evaluation must occur from the moment of planning through implementation in concrete cases. A concern for vigilance in light of security threats, with sustained commitment to important values and norms, best sums up Heymann’s book. The goal of counter-terrorism cannot merely be to end terrorism, but to do so in a manner that is consistent with democratic and human rights.
TERRORISM, FREEDOM, AND SECURITY provides no simple recipe for counter-terrorism. That is clearly one of the work’s main strengths. Heymann recognizes the complexity of terrorism in a complicated world. For these reasons, the book usefully spells out the tough choices that need to be made to respond efficiently and wisely to the reality and potential of the terrorist threat in our present era. The nuanced manner with which Heymann presents his thoughts, and his fluent writing style, will give this book broad appeal among students and scholars, and among a more general audience as well. In addition, it could not be more timely, given the wide fascination and concern with the terrorism puzzle. Despite the fact that Heymann might have more explicitly related his work to the current literature on terrorism and counter-terrorism (which is ever-growing since September 11), courses on terrorism in political science and other social sciences will surely find this book a very helpful source, especially when the focus is on matters of policy, law, and security. As a contribution to our thinking and re-thinking of counter-terrorism today and into the future, Heymann’s book will remain an important source of reference for many years to come.