Book review: Protecting Liberty in an Age of Terror

Mathieu Deflem

Published in Contemporary Security Policy 27(2):355-357, August 2006.

Please cite as: Deflem, Mathieu. 2006. Review of Protecting Liberty in an Age of Terror, by Philip B. Heymann and Juliette N. Kayyem. Contemporary Security Policy 27(2):355-357.

In Protecting Liberty in an Age of Terror, authors Philip Heymann, professor in the Harvard Law School, and Juliette Kayyem, adjunct lecturer at Harvard’s Kennedy School of Government, offer legal recommendations in the war on terror following a series of meetings of terrorism experts held under the auspices of the Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms. The suggested recommendations are meant to provide legal safeguards to US counter-terrorism policies, especially in view of seeking a balance between the presidential claim to wartime powers and the oversight they need from Congress and the courts. The book is specifically oriented at policymakers to recommend to them the rules and procedures that must govern the US legal system’s response to terrorism.

Besides the Introduction, the book consists of ten chapters on various strategies in the war on terror that have often been the subject of debate and controversy since the events of 9/11 and the US-led invasion of Iraq. By means of modified or new legal arrangements, the book’s recommendations seek to offer democratic counter-weight in the use of counter-terrorism strategies. Heymann and Kayyem’s book thereby addresses the powers of the executive at home and abroad and the necessary tools to provide accountability to these powers. In two additional appendices to the book, policy experts Thomas Lue and Tom Parker provide informative overviews on the existing counter-terrorism regulations in the United States and the United Kingdom.

Briefly reviewing the chapters of this book, the authors first deal with coercive interrogation techniques, suggesting that the prohibition of torture should be upheld, while other coercive interrogation techniques are proposed to be regulated by the attorney general under supervision of US Congress. Indefinite detentions are recommended to be allowed only in a zone of active combat pertaining to a conflict between the United States and another state, an organization, or a defined class of individuals. The authors apply the same active combat zone restrictions to the use of military commissions and targeted killings. In the case of the surveillance of communications and other information collection methods, probable cause restrictions in terms of the Intelligence Surveillance Act (FISA) are to be employed to limit the use of such techniques. Investigations of religious and political meetings are only to be allowed when terrorist activities are planned, while profiles of US citizens always ought to be prohibited. All extraordinary measures in the war on terror, finally, the authors recommend to be subject to the review of non-partisan commissions established by the congressional leadership.

This book offers technical-legal advice for policymakers and those experts of law who work to support official policy. As a manual and guide of law, this book has clear merits in understanding the delicate nature of the war on terror vis-à-vis liberty and democracy in the US. Yet, the technically confined orientation of this book is very restrictive. Perhaps amplified by the fact that I read this book while attending a terrorism conference in Turkey, the book strikes me as limited in offering recommendations to counter-terrorism only from the viewpoint of the US legal system and the assumed centrality of US responses to terrorism on a global scale. The authors admit as much when they assert that “the United States has not merely seen itself as a model for others but also as an active source of positive change in the world” and that this “tradition must continue” (p. 9). However, in a globalized world, not least of all with respect to the organization of terrorism and counter-terrorism alike, such a stance is problematic. Besides wondering whether the self-perception of the US is shared among the nations of the world, it is important to recognize that counter-terrorism strategies need a cosmopolitan approach based on an egalitarian sense of cooperation among nations. Also in view of the interests of the United States, there is no alternative to a global civil society that is built on the basis of the manifold relevant visions from the world’s democratic nations rather than merely the position of its current political and military center. Heymann and Kayyem, however, are comfortable in suggesting recommendations that offer greater protections to US citizens and persons residing in the United States than to non-US citizens abroad. For instance, the authors argue that targeted killings are allowed outside a zone of active combat only if there is a “reasonably imminent threat” to the life of a person, but never in the case of a US citizen (p. 65). The problem with such a recommendation is not only its potentially negative impact in terms of international relations with the United States, but the practical difficulties officials will find themselves in making any determinations of citizenship in imminent-threat situations.

Legal demarcations cannot always neatly follow the ever-changing complex reality of terrorism and counter-terrorism. This book relies not only on an approach of more and more detailed laws to modify the war on terror, it does so in a top-down approach that lacks the input and insights from the agencies whose members employ the discussed strategies in the field. Narrowly focused on certain legal issues of the US war on terror, this book does not analyze the war on terror and offers no extra-legal contextualization to the suggested recommendations. As the authors write, their book seeks to “explore how American democracy can thrive best in a ‘war on terror’” (p. vii, my italics). As such, this book will surely be of interest to policymakers, but whether this book can also be of interest to concerned citizens may be another matter as the reasons of their concerns towards the war on terror may well be fueled rather than mitigated by a technocratic-legal perspective. Scholarly analyses of the war on terror, in any case, will need more than an effort in legal engineering to offer meaningful contributions directed towards the development of a terrorism policy that is effective as well as sound with respect to a plurality of standards. Even contributions on the legal aspects of terrorism policy at home and abroad must rely on analyses that do not avoid breadth and depth in studying the manifold responses to terrorism (such as they were addressed, for instance, in Heymann’s well-balanced book, Terrorism, Freedom, and Security: Winning Without War, The MIT Press, 2003). In order to develop a thoughtful counter-terrorism policy, the techniques of law alone will not suffice. For policymakers willing to continue the war on terror, this book’s recommendations may offer helpful legal advice.