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DEMOCRATIC DILEMMA IN ASYMMETRIC WARFARE

Should democratic states limit their granting of powers to security agencies in light of human rights issues, even if it will decrease effectiveness?

Strategies being developed to protect or further the interests of a number of new players on the international scene are inspired by the dual idea of evading and frustrating superior conventional military force within the global chaos.

The better a power becomes at the operational (i.e., attrition) level of conventional war, the more a potential adversary turns to asymmetric solutions.

strictly military actions appear to be much less important than supporting economic and political actions.

Evidence indicates that a strong strategy by a targeted government to attain or enhance its moral legitimacy is the single most effective thing it can do for its own survival. Because of the superior conventional power and technology available to a targeted government, an illegal attacker is at a disadvantage in attempting to overtly or directly challenge it.

Thus, the assault is generally indirect and centers on a regime’s moral right to govern—or ability and willingness to govern. As we are seeing in Afghanistan, unless the new government can consolidate and enhance its legitimacy, there is great danger that both the Taliban and Al Qaeda will return and reestablish a terrorist sanctuary.

Islamist discourses have emerged due to specific factors that can be traced back in history, one of these being localized political, ethnic or cultural grievances that stem from a prolonged history of government suppression. Seen in this light, Islamist networks, at least initially, were far from being an epic "clash of civilizations" but rather an outcry by oppressed groups or members of society, which, because of the radicalized forms that these grievances soon take, have sought contacts with similarly oppressed, like-minded groups in different national settings.

The strict control of the Islamic discourse left little leeway between fundamentalist Islam which the government claimed for itself as the official discourse and "deviationist Islam" which characterized all others. 'Authoritarianism through Islam' remained characteristic of the administration throughout the eighties, sometimes opening new channels for the Dakwah movement and for the Islamic opposition.

ABIM developed close ties to religious movements in the Middle East and Pakistan such as the Muslim Brotherhood and Jemaat-i Islami. PAS has remained largely localized apart from its contacts with South Asia, from where a considerable number of Malay students were sent to conservative Deobandi Madrasahs in Pakistan.

The main threat for the government came from students studying abroad. Here it seemed necessary to again implement the version of "right Islam" since students who came into contact with foreign interpretations of Islam became more aware of the rigid limitations of religious policies at home and radicalized as a result.

The emergence of Kumpulan Mujahedin Malaysia (KMM), founded in October 1995 by a veteran from the Afghanistan jihad, can be interpreted as the localized development of networks that eventually grew to regional ones by linking with others in the Southeast Asian region.

Defining the attacks as an act of war-instead of a domestic crime or a crime against humanity-has implications for the presidency as well as for the nation, opening up some policy avenues and foreclosing others. One important outcome has been the centralization of power within the Oval Office; presidents historically have been able to exercise greater authority in international than domestic matters, and in wartime than peacetime. In the current crisis environment, this administration has asserted unilateral authority in multiple arenas

a war on terrorism, bringing a securitization of domestic life, creates a different metaphor. Liberties are not luxuries to be sacrificed in the short term until we can afford them again. Liberties are gaping holes in the security fabric; they must be sealed off permanently if the nation is to be safe. The demands of a war on terrorism also undercut the likelihood that liberties can be reasserted, because a war without a clear end will never produce the peace of mind necessary to reflect on what we have lost.

Framing civil liberties as a point of vulnerability from a national security perspective:

“Terrorists exploit our openness-not randomly or haphazardly-but by deliberate, premeditated design. Our freedoms are being turned against us, as "means of freedom's destruction" (Attorney General Remarks 2002d).

"We are at war with an enemy who abuses individual rights as it abuses jet airliners: as weapons with which to kill Americans" (U.S. Senate 2001).

In other words, a system of civil liberties makes the country more vulnerable to future attack; it is part of the terrorist arsenal.

RESTRICTIONS ON CIVIL LIBERTIES

to foil the terrorist plot, the administration must enact antiterrorism measures that ensure greater governmental control of information, fewer procedural protections for people linked to terrorism (as either suspects or material witnesses), and enhanced government surveillance.

Not surprisingly, these are the civil liberty encroachments most lamented by policy critics.

CURTAILING PRIVACY EXPECTATIONS

government's power to intercept wire, oral, and electronic communications; to engage in pen register and trap and trace searches; to get access to certain business, library, and medical records; ro utilize a single search warrant for nation-wide searches; to expand the scope of subpoenas for electronic communications; to block notification of the search to the person whose records have been searched; to limit the liability of persons who disclose required records to the government and thereby violate privacy laws; and to permit information sharing between law enforcement and intelligence-gathering agencies (Patriot Act 2001)

LIMITING RIGHTS TO DUE PROCESS

Antiterrorism measures have raised multiple questions relating to due process, specifically the presumption of innocence, the writ of habeas corpus, and the rights to counsel, a speedy and public jury trial, confront witnesses, and search and arrest warrants based on probable cause.

Unlike ordinary crime, the government asserts, terrorism must be stopped in advance as well as prosecuted, and this compelling proactive mission necessitates different procedures.

But the national security mandate has not produced consistent procedures "or even understandable principles" in government prosecutions for terrorism. instead of following even a broad reading of due process, whatever that process is, executive decision making in this area has been characterized by an element of arbitrariness.

WRIT OF HABEAS CORPUS

president's designation of citizens as enemy combatants, thereby removing them from the regular criminal justice process and even stripping them of the right to petition for a writ of habe

securitized environment as framed by the administration is fundamentally altering the relationship between the citizen and the state. At issue is the writ of habeas corpus.as corpus.

PRESUMPTION OF INNOCENCE

the presumption that a person is innocent until proven guilty by the state; in criminal cases, the state must prove its case beyond a reasonable doubt. However, since the attacks of 9/11, this presumption has been suspended as it applies to people-particularly younger men-who are Muslim and/or Middle Eastern. The burden of proof is on them to establish their innocence.

ETHICS IN COUNTER-TERRORISM

Some terrorist acts can be regarded as ordinary crimes and subject to domestic criminal law. Accordingly, such terrorists should be investigated, arrested and charged, and tried and punished, in accordance with the principles and processes of the criminal justice system in the same way as an ordinary murderer or other criminal would be.

Terrorists operating in theatres of war are de facto military combatants, i.e., terrorist-combatants. As such, they can justifiably be shot at, bombed, ambushed and either captured or killed.

‘Unlawful combatants’: combatants who ought to be regarded as unlawful combatants, since their individual mode of combat is perpetrating terrorist acts, e.g., murdering innocent noncombatants.

the methods of terror are constitutive of terrorist organization and, therefore, the organization and its combatants are, or ought to be, unlawful.

terrorists should not be subjected to a hybrid framework under which they are both ordinary criminals and simultaneously military combatants; certainly, the imposition of a selective hybrid framework by means of which terrorists get the worst of both worlds is morally objectionable.

To avoid inconsistency a terrorist act that is treated simply as an ordinary crime ought not simultaneously to be treated as a war crime, and vice versa.

how to separate these two kinds of terrorist act: ordinary crimes and war crim

(1) well-ordered (non-totalitarian) nation-states in peacetime and, specifically, well-ordered, liberal-democratic states at peace;

(2) theatres of war, i.e., battlefields, in the context of wars between states;

(3) theatres of war in the context of wars involving non-state actors, e.g., a civil war or armed insurgency between a government’s security forces and some other armed and organized military force, or a contested foreign occupancy.

two different types of terrorist, namely, military combatants (including the leaders of military combatants and those who assist combatants qua combatants) and non-combatants, i.e., those who are not military combatants. If we marry these two different categories of terrorist with the three above-mentioned types of context, we end up with six conceptual possibilities, namely, military combatant or non-combatant (roughly speaking, civilian) terrorists functioning in each of the three types of contexts

a terrorist who is not a terrorist-combatant, i.e., who is not a military combatant, is a terrorist who is either not a member of a terrorist organization fighting a war or someone who is perpetrating acts of terrorism outside a theatre of war in the context of a well-ordered liberal democracy at peace.

the conception of terrorism-as-crime is appropriate in the context of a well-ordered liberal-democratic state at peace in which non-combatant citizens of that state are performing acts of terrorism within the territory of that state and directed at that state and its citizens.

the inherent danger police forces becoming the coercive instrument of governments in relation to the citizenry, i.e., the threat of a police state, is averted in liberal democracies by establishing the following division of labour between the military and the police.

On the one hand, while the military is a coercive instrument of government, its focus is external national defence, not internal policing of the citizenry.

On the other hand, while the focus of the police is internal policing of the citizenry, it is not a coercive instrument of government; rather, the police have a quasi-independent status as the protectors of the human and other moral rights of the community and as the servants of its laws.

I have emphasized the importance of maintaining a degree of police independence from government. However, it is equally important to point to the dangers of high levels of police independence. After all, the police have very substantial coercive powers, and historically the abuse of these powers has been an ever-present threat. Specifically, police organizations do need to be subjected to (at least) the constraint and influence of their communities via democratically elected bodies, notably the government of the day.