Could New Laws to Fight Terrorism Actually Help Fuel It?

Last week in Australia, 230 suspected jihadists were prevented from flying to the Middle East, highlighting a trend among governments (Canada and France are others) to implement tough new counterterrorism laws. While these laws have a purported purpose of improving national security, there is a risk that punitive measures that widen police and intelligence powers will have limited utility and narrow the political freedoms and human rights protections that many in these societies consider essential. More significantly, they could prove counterproductive to fighting terrorism by increasing the marginalization of communities.

Counterterrorism measures in each country vary, but collectively the new laws reinforce existing provisions that increase the power of police officials to investigate, detain, and arrest suspects; reduce the due process rights of suspects and limit judicial review; restrict financial transactions and remittances to individuals and entities abroad, especially in Muslim-majority countries; require Internet companies to provide personal communication information to state officials; and increase government authority to control Internet content.

In Canada experts have warned that the new laws could have a significant limiting effect on freedom of speech and ultimately curtail the ability to engage in conversations with people in affected communities about the political, social, and religious issues that drive people toward extremist ideologies. In France, counterterrorism measures adopted in recent years have led to increased arrests for vaguely defined “terrorism association” offenses, with many of those affected subjected to harsh questioning and extended pre-trial detention. A Human Rights Watch report warns that such measures risk alienating entire communities. They could feed resentment and erode public trust in law enforcement and security forces among the very communities whose cooperation is needed in the fight against terrorism.

The new measures continue and intensify a pattern of expanding counterterrorism legislative and legal authority that has spread throughout the world over the past 14 years. From the adoption of the USA Patriot Act in the weeks immediately following the September 2001 attacks, governments have sought protections against terrorism through greater police powers and tighter security restrictions. This is part of a larger trend observed by non-governmental monitoring organization Freedom House, which has reported a significant erosion of global political freedom over the past decade.

In its 2015 annual survey, Freedom House stated that the condition of global political rights and civil liberties had showed an overall decline for the ninth consecutive year. It described developments in 2014 as “exceptionally grim,” with nearly twice as many countries showing declines in freedoms compared to those experiencing gains. A number of countries lost ground due to increases in state surveillance, restrictions on Internet communications, and curbs on personal autonomy. The most notable reversals were in the areas of freedom of expression, civil society, and the rule of law. According to the organization, the past nine years have witnessed the longest continuous period of decline for global freedom in its nearly 50-year history of publishing annual ratings. Freedom House does not attribute the observed decline in freedom directly to counterterrorist legislation, but the effect of such laws is typically to reduce rather than expand personal freedoms. Measures are weighted toward increasing the authority of security forces and the executive branch of government, usually at the expense of judicial independence, legislative oversight, personal privacy, and the rights of civil society.

Given all the attention to counterterrorism policy, one might expect government officials to demand a strict accounting of the measures they are adopting. But, despite the vast global effort, governments have commissioned very few studies to assess the effectiveness of counterterrorism legislation, which contrasts with the evidence-based evaluation that has become the norm in development funding and other areas of public policy. This official void has, however, been filled by third party analysis from human rights-focused groups, which have largely established a pattern of limited utility and counter-productivity.

A 2010 Human Rights Watch report focusing on the United Kingdom found that a “stop and search” authority granted to British police was applied disproportionately against ethnic communities, resulting in harm to perceptions of the police within Muslim communities. According to the report’s review, 3,500 police stops over a 12-month period in Hampshire in southern England failed to result in a single terrorism arrest. A scholarly study of Israeli repressive measures against Palestinian extremists similarly found punitive measures either had no effect or resulted in an increased level of terrorist violence, while conciliatory measures were associated with decreased levels of terrorism. Meanwhile, a study of Spain’s response to terrorism from Basque separatists ETA found that restrictive measures were effective in countering attacks, but only when they were combined with targeted arrests of specific terrorist suspects.

Evidence for the effectiveness of restrictive financial measures is also tenuous. Governments and agencies such as the transnational Financial Action Task Force (FATF) have imposed restrictions and established standards to prevent the diversion of charitable funds for terrorist purposes. However, a World Bank report found that reliable figures on the extent of such diversion were unavailable. The study quotes a British government assessment that the scale of terrorist links to the charitable sector is “extremely small.” Terrorist groups are financed primarily through criminal activity such as money laundering and black marketeering. A recent report on ISIS indicates that the group finances its operations almost entirely through fees from illegal checkpoints, the seizure of banks, the smuggling of oil, ransom payments and human trafficking. There is no indication of substantial ISIS funding through charitable channels.

Restrictive measures adopted in the name of counterterrorism can have the effect of hindering civil society efforts to overcome the conditions that give rise to terrorism. The FATF acknowledges that non-profit groups “play an important role in preventing the causes of radical ideology from taking root and are, therefore, potential allies in the fight against terrorism.” Through their work for development and conflict transformation, civil society groups often help to dry up the wells of extremism from which violence springs. Yet restrictions on charitable funding, barriers to dialogue with radicalized communities, and the weakening of human rights protections make this work more difficult, as noted in the Friend not Foe report for the Dutch development agency Cordaid.

No one doubts the need for police protection against violent attacks, but the continuing pursuit of ever more restrictive counterterrorism legislation may be generating negative impacts that weaken the global fight against terrorism. As the Freedom House report argues, a “lack of democratic governance creates an enabling environment for terrorism.” The challenge for governments is to find ways of countering the threat of terrorism without weakening the political liberties and human rights protections that many consider to be the best defense against violent extremism.

David Cortright is Associate Director of Programs and Policy Studies at the Kroc Institute for International Peace Studies, University of Notre Dame.