The Criminal Law and Terrorism

Abstract

The criminal law has frequently been expanded as a direct response to acts of terrorism. In the first part of this chapter, I will provide an overview of how new criminal laws have often been produced in response to terrorism and relate this to narrative, memorial, and communicative uses of the criminal law and increased concern about the rights of victims and potential victims of crime.

In the second part of the chapter, I will examine some of the dangers of the criminal law solution to terrorism from both instrumental and normative dimensions. Although it is relatively easy to be critical and even cynical about reliance on criminal law as a response to terrorism, the virtues of the criminal law should not be ignored. They emerge when comparisons are made to a sometimes lawless and no-holds barred war that has, at times, been waged against terrorism. In the third part of this paper, I will examine some of the restraints of the criminal law as compared to the use of war, assassination, extraordinary rendition, torture, preventive detention and immigration law.

In the final part, I will begin the task of situating the criminal law in a more comprehensive and multi-faceted anti-terrorism strategy. Drawing on work in the fields of public health, technology and crime prevention, I will suggest that administrative and private sector strategies can play an important role in making it more difficult for terrorists to have access to sites and substances vulnerable to terrorism and can take steps to limit the harms of terrorism.