As the twenty-first century dawned, the public in the western world awakened to a new and heightened concern about terrorism as a consequence of the Al Qaeda attacks on the United States on September 11, 2001. Efforts to control and eliminate terrorism inevitably present a conundrum for democratic governance and the rule of law. Indeed, plans for a new U.S. embassy in London unveiled in 2010 can serve as a metaphor of the tensions terrorism introduces into a democracy. The structure, described as architecture serving “as a form of camouflage,” appears more like a fort than a welcoming democratic symbol (Ouroussof, 2010). Must democracies become fort-like entities rather than ones fostering freedom and self-actualization? Although the democratic promise is that liberty and security can be reconciled, how that reconciliation is achieved varies over time and by country.

Courts stand as the fulcrum to achieve a balance between protecting national security successfully and preserving democratic governance. Unfortunately, too often repression is the governmental response to violence, but repression and violence can develop a symbiotic relationship, with “each feeding off the other, in a mutually sustaining fashion” (Campbell and Connolly, 2006: 955). Democratic governance requires adherence to the rule of law, and the rule of law intrinsically entails respect for human rights (Tsoukala, 2006: 615). This book brings together analyses of how courts in the United States and eight other jurisdictions have treated governmental responses to terrorist threats and have balanced violence and repression, rights and security.

As the horrors of September 11, 2001, fade in our collective memory, people continue to dutifully remove their shoes at security checkpoints in U.S. airports, Australian authorities attempt to explain the requirement for placing all liquids in a small plastic bag for flights to the United States, and authorities at the Rome airport quarantine travelers to North America and Israel in a bunker-like Terminal T that is difficult to find or reach. Yet, terrorists remain active across the world and are not limited to supposedly Islamic fanatics. Narco-traffickers terrorize Mexico, large bombs continue to be found in parts of Northern Ireland, hotels are bombed in Mumbai, and car bombings are regular occurrences in Pakistan. Moreover, a number of long-held beliefs about citizens' rights to privacy, government transparency, and treatment of the criminally accused in much of the world may have also become casualties of terrorism. The tenuous balance between preserving national security and democratic governance and human rights may possibly have been irrevocably altered, as the contributions to this book suggest.

Although all terrorists use similar methods, their goals and aims can be different. The Irish Republican Army, ETA, the Red Brigade, FARC, and ELN used violence to attain autonomy or to effect fundamental change in one nation (Löwenheim and Steele, 2010). The same has been true for most of the terrorist foes in Israel. Yet other terrorists have interests that transcend national boundaries.

Times of perceived national emergency and “war” bring into bold relief the fundamental tensions between security and liberty, along with those between democratic passions and the exercise of judicial review to enforce the rule of law. Historically, this has been the case in the United States and most recently with the “war against international terrorism.” Throughout the history of the United States – from the founding period to the Civil War, to World Wars I and II, and to the present “war against terrorism” – the president and Congress have tended to curtail, if not at times excessively curb, civil liberties in the asserted interest of safeguarding “national security.” The Supreme Court also has generally, though with some notable exceptions, proven reluctant to second-guess the president and Congress or to defend civil rights and liberties in times of perceived national emergency.

As Justice William J. Brennan Jr. once succinctly observed, the political history of times of perceived national emergency “teaches that the perceived threats to national security that have motivated the sacrifice of civil liberties during times of crisis are often overblown and factually unfounded” (Brennan, 1987: 8). The tendency to overreact, such as by detaining individuals who are perceived as alleged threats to national security, has arguably been grounded in a political tradition of isolationism and reinforced by the country's geographical isolation secured by two great oceans.

Judgments are easily made under the assumption that the problems we confront are quite unlike those that have gone before. That has been especially problematic in the post–9/11 world in which secret prisons, detentions without trial, aggressive forms of interrogation, secret evidence, and special tribunals have been seen by the U.S. government and others as necessary and expedient tools for combating terrorism. Critics have seen these developments as ominous and possibly unique intrusions on civil liberties. In fact few, if any, of these issues or measures are new, and some of the techniques for combating terrorism have been tried and previously tested in courts, most notably in the European Court of Human Rights. This chapter will help readers recall some of the European experiences and outcomes that might inform our judgments these days. However, the practices in Europe have sometimes been as invasive of fundamental rights as those in the United States, so the outcomes are not always encouraging to human rights advocates.

Among the key differences between the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the U.S. Constitution is that Article 15 of the ECHR provides for derogation from the rights and procedural obligations undertaken by member states under the convention. Derogation is allowed “in time of war or other public emergency threatening the life of the nation,” although certain rights are exempted from derogation.

Australia may have been as far removed from the tragic events of September 11, 2001, as any country could be, but it was not untouched or unaffected. Ten Australians were killed by the terrorist attacks on that fateful day, and Prime Minister John Howard, who happened to be in Washington, D.C., preparing to deliver an address the next day to a joint session of Congress, was just a few miles away when one of the hijacked airplanes crashed into the Pentagon (Guerrera, 2004: 12; U.S. State Department, 2001). He was evacuated from his hotel by the U.S. Secret Service and rushed to the basement of the Australian Embassy (Romei, Eccleston, & Shenahan, 2001: 1). Although his planned address was canceled, he was honored with a standing ovation and stayed to witness Congress's historic debate condemning terrorism on the day after the attacks. Cutting short his official state visit to the United States, the Prime Minister returned to Australia, and his government commenced work on what would become an extensive new counterterrorism program.

This chapter examines Australia's new security legislation enacted in the aftermath of the terrorist attacks on September 11, 2001. The legislation introduced new offenses and powers similar to those adopted in other countries: amending the criminal law to include new definitions of terrorist acts, including providing financial support to any group on a list of suspected terrorist organizations; establishing procedures for preventive detention and control orders; and authorizing new powers of intelligence gathering, interrogation of terrorist suspects, and electronic surveillance.

Democratic governments have been grappling with the issue of the rule of law and terrorism long before the Northern Ireland crisis, and they continue to do so after September 11, 2001, and the more recent terrorist acts in Britain and Spain. However, Britain had to deal with a very specific form of terrorist activity in Northern Ireland, from a very specific group, the Irish Republican Army (IRA), from 1922 to 1998. To complicate matters, this confrontation was managed through the security policy of a decentralized Unionist government in Ulster from 1922 to 1972. In 1998, a major breakthrough was achieved when the Good Friday Agreement was signed establishing a consociational structure of governance for Northern Ireland, and issues that were incandescent from 1969 to 1998 then began to ameliorate. Further compromises on the issues of arms decommissioning by the IRA, police control, and prisoner release during the period from 1998 to 2007, coupled with an emphasis on Islam-based terrorist activities in Britain proper, led to a further winding down of security legislation and the use of the courts in Ulster. Thus, this chapter focuses primarily on the legislation, security activities, and the courts in Northern Ireland from 1969 to 1998.

Why the years from 1969 to 1998? A full recapitulation of the political conflict in Northern Ireland would require us to go too far back in time, to the early 1600s, and too deep into the complex relationships among land, religion, and power in Ireland in the nineteenth century.

During the morning rush hour on March 11, 2004, ten bombs exploded on four trains around the metropolitan area of Madrid. The ten bombs, as well as three others that did not explode, had been placed by a group of jihadist terrorists protesting Spain's participation in the war in Iraq. It was the largest terrorist attack ever perpetrated in Spain, leaving 191 dead and 1,800 injured. It was not, however, Spain's first experience with terrorism. Spaniards have lived with domestic terrorism for decades. Terrorist groups that appeared in the 1960s during Franco's dictatorial regime did not all die out with Franco's death. The Basque separatist group, ETA, has continued to be particularly active. This group resorts to terrorism in an attempt to force a declaration of independence for the Basque Country. The Basque Country has three provinces in northern Spain (four, say the most uncompromising, who also include Navarra) and three provinces in southern France, where ETA also operates; indeed France and Spain cooperate in the fight against ETA. ETA pursues the independence of all six (or seven) Basque provinces and the declaration of a Basque state independent from both Spain and France.

The persistence of terrorism posed a serious threat to Spain's new democracy, particularly during its earliest and most fragile years. Turning Spain into a democracy at the end of Franco's dictatorship was a delicate political operation that required a careful balancing of opposing political forces, those that demanded an immediate transition to democracy and those on the other side of the political spectrum that opposed any major political change.

In 1994 an unusual case of administrative detention came before the Israeli Supreme Court. During the preceding forty-six years the Court had reviewed dozens of detention orders. What made this case different from all others was the fact that the only legal ground for holding nine of the ten petitioners, all of them citizens of Lebanon, was that they were being used as “bargaining chips” for the release of an Israeli pilot, Ron Arad, believed to be held as a prisoner by a terrorist organization based on Lebanese soil. In 1997, the Court handed down its decision. Two justices who formed the majority of the panel decided that holding the prisoners for such purposes falls under the definition of “state security,” whereas the minority justice ruled that there are no grounds for such detentions if the detained prisoners pose no danger to state security. Three years later, in April 2000, the Court, sitting in an enlarged panel of nine justices (including the three justices who heard the 1997 petition), reversed its decision and ruled that the state has no right to hold the prisoners as a bargaining tool for the release of a captive Israeli soldier. The fifty pages of the Court's opinion bring to light the dilemmas faced by a democratic society wishing to secure bearable standards of human rights and dignity of persons, on the one hand, and at the same time fight terrorist organizations that abide only by their own internal operating rules.

Throughout the 1970s, Italy was struck by a wave of terrorist attacks. Undoubtedly, at that time Italian terrorism was the most active of any country in Europe, and not surprisingly, it made a deep impact on the judicial system; the growth of judicial power in the 1980s and 1990s is strongly linked to terrorist activities in the 1970s. The fight against terrorism has deeply involved courts and the judiciary and ultimately influenced the way the judicial system has later confronted other criminal phenomena like organized crime and political corruption. None of these developments can be understood without considering the structure of the criminal justice process. Much of the success of Italy's fight against terrorism has been ascribed to its original criminal justice process, to its quick adaptation to the new challenge, and to the resulting strength of judicial powers.

Today, Italian terrorist groups, although always dangerous, seem to be largely dismantled. A stronger threat seems to be from international terrorists, especially Islamist groups, although so far no significant attack from international terrorists has occurred in Italy. Whether the Italian judicial system is still as effective as it has been in the past cannot yet be assessed.

THE ITALIAN JUDICIAL SYSTEM: ITS TRADITIONAL SETTING

In the late 1960s, before terrorism became a national emergency, Italian criminal justice was organized according to the European semi-inquisitorial style typical of the French Napoleonic tradition. The Code of Criminal Procedure enacted by Napoleon in 1808 influenced Italy and several other civil law countries (Damaska, 1986).

With the fall of the Berlin Wall still fresh in 1991, I drove to Prague, just to see what it looked like. Beautiful and drab at once, it was a city that preserved a copious history, both ancient and recent, and a sensibility quite unlike any I had come across before: erudite, yearning and humble all at once. A few years later I moved to Budapest, a very different city, but one that shared a similar sense of wounded magnificence and of informed, tentative hope. Remaining there over much of the decade, I developed some sense of what it means to live through history. For these countries were, in those years, at the centre of a tremendous transformation, one that spiralled quickly outwards and came to engulf much of the rest of the world – extending, as I learned during a two-year stint in Senegal some time later, to Africa and beyond. As the Cold War thawed, it seemed to unleash all sorts of flows across the world's previously unyielding borders: of money, of people and, perhaps most of all, of ideas.

This book began life in my desire to understand and articulate my personal and professional experiences from those years, much of which I spent working in a field that has come to be known as ‘rule of law promotion’. That is the name given to an immense and still expanding body of practice aiming to reform and improve the laws and institutions of countries across the world.

The rule of law narrative that emerges from a close examination of the project literature resembles a stylised drama, peopled by familiar actors performing from a limited and well-known repertory. The following chapter examines the themes and actors that habitually reappear on the rule of law stage. The motivating theme is modernisation, providing a distinctive setting and consistent background motif. This setting posits a relation between donor and recipient countries, with the latter aspiring to the conditions in the former, but also intended to further their mutual association to their mutual benefit. The action, which takes place in the host country, takes the form of a morality play dramatising the complementary, if contrasting, obligations of public and private actors: the former must be bound in order that the latter might be free. The plot comprises a series of set ordeals illustrating the virtues of modern government: moral rectitude (anti-corruption), self-discipline (governance) and self-abnegation (privatisation). Other characters central to plot development are the judiciary, civil society and the media – who in different ways reinforce and refine the public–private divide. The stock character of the ‘reform constituency’ in the host country mediates the action; significantly more complex character development is expected of ‘the poor’. The drama's projected ending looks forward to the integration of the state in the global community, having assumed an enabling environment for investment, judicial protections of assets and of political and economic freedoms, without discrimination, and obligations towards other international actors.

In a common formulation, the rule of law posits a relation between the individual and the state in which the former is a bearer of rights held against the latter, enforced by an independent judiciary. This story – with the protected rights varyingly termed ‘ancient’, ‘fundamental’, ‘inalienable’ or ‘human’ – is well known and need not be reproduced here. However, there is a flipside to the story: the rule of law's mantle has not generally extended to – and has frequently been represented as antithetical to – a sizeable subset of the ‘fundamental rights’ enumerated in international human rights instruments – the covenants on, respectively, ‘civil and political’ and ‘economic, social and cultural’ rights. Thus, whereas the rule of law is frequently articulated as a ‘guarantor’ of human rights as such, in practice these articulations do not easily extend beyond that subgroup of rights termed ‘civil and political’.

Silence on ‘social and economic rights’ pervades contemporary project literature, even though, as we shall see in Part II, economic governance is a primary subject and target of this literature. As such, the silence may appear to be a mere oversight or, at worst reflective of an institutional (as opposed to a conceptual) bias. Yet far from being peripheral to the historical reception of the rule of law ideal, state efforts to protect and promote welfare have in fact played a central role in determining the normative reach of the term.