The security or freedom framework fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. At each point where the legislature would be expected to push back””at the introduction of the measures, at the renewal of temporary provisions, and in the exercise of oversight””its ability to do so is limited. The judiciary’s role, too, is restricted: constitutional structure and cultural norms narrow the courts’ ability to check the executive at all but the margins. With the long-term political and economic effects of this expanded executive strength masked by the immediacy of the security or freedom dichotomy, the true costs of anti-terror legislation in the U.S. and U.K. have gone uncalculated. In both countries, over the past four decades, the relationship between the branches has altered, individual rights have narrowed, and the relationship of the citizens to the state has changed. Counterterrorist law has alienated important domestic and international communities, created bureaucratic inefficiencies, and interrupted commercial activity.
Focusing on these costs does not mean that no benefits accrue from counterterrorist law. Indeed, it is important to recognize where security is gained. It has been nearly seven years since the 9/11 attacks, and no major al Qaeda attack has occurred on American soil. In Britain, intelligence agencies and law enforcement have successfully broken up a number of nationalist and religious terrorist cells. This does not mean that every counterterrorist measure introduced has been responsible for these gains””it would be sloppy logic to assume this””but calculating such benefits is essential to instituting a strong counterterrorist regime.
I am not, however, discussing the security benefits. Instead, I am focusing on the costs, which the assumptions in the security or freedom dichotomy ignore. And here the damage caused to the US and the UK by anti-terror legislation is significantly greater than it first appears. These two countries, moreover, are setting global counterterrorist norms and risk the transfer of these detrimental effects to other liberal, democratic states. Furthermore, it is in response to conventional attacks that both states’ counterterrorist regimes have developed. The proliferation of fissile material, and I would add biological weapons to Professor Holmes’s consideration of nuclear threats, together with a growing willingness on the part of extremists to sacrifice themselves, may drive the two countries to take increasingly drastic measures. The result could be a shift in the basic constitutional structure of both states.