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Has ISIS become the new pretext for curtailing our civil liberties?

A series of measures put in place in the years following 9/11 have now become a fixture of Western government: mass warrantless surveillance, longer periods of detention without charge, and greater state secrecy without accountability. The United States finds itself at the vanguard of this movement with its embrace of executive authority to carry out targeted killing of its own citizens. Many of these measures arose in part as an over-reaction to the threat of al Qaeda. But they were also due in part to a plausible concern that terrorism had come to pose a threat of a much greater magnitude than was previously thought possible. For many, terrorism had become closer in nature to war than to crime, justifying a host of invasive measures.

Almost 15 years later, the continuing argument for those measures rests on the belief that terrorism still poses a threat tantamount to war. In the wake of recent attacks in Paris, Ottawa, and Sydney, governments have sought to make this argument by linking the threat of domestic terrorism to ISIS. The link is necessary because ISIS is now the only entity capable of serving as a plausible basis for the claim that jihadist terrorism continues to be potentially war-like in scale. The need to see terrorism on this scale to justify extraordinary measures points to an earlier shift in perceptions of terror.

Prior to 9/11, terror on domestic soil was seen as a criminal act, regardless of its scale. Conventional prosecutions followed the Oklahoma City and Air India bombings, and earlier events involving the IRA and other political groups.

After 9/11, terrorism in much of the West came to be understood in terms of what can be called the harbinger theory. This was a belief that 9/11 was not an anomaly in the history of terrorism, but the harbinger of a new order of terror — one in which future attacks on the part of al Qaeda or an analogous group would soon occur in a major Western city on a similar or greater scale, possibly involving weapons of mass destruction. It now seemed plausible that terrorism could involve tens or hundreds of thousand of casualties, even millions, the threat was comparable to war. As a consequence, for Dershowitz, Posner, and others, the conventional limits on state power in constitutional and human rights were no longer tenable.

In the United States, the harbinger theory still forms a crucial basis for national security policy. Following the Snowden revelations, for example, President Obama defended the continuing use of bulk metadata surveillance by asserting: “the men and women at the NSA know that if another 9/11 or massive cyberattack occurs, they will be asked by Congress and the media why they failed to connect the dots.” A bill before Congress purporting to overhaul the Patriot Act has been lauded for ending bulk data collection by the NSA. But to appease concerns about “another 9/11,” it will retain the practice of bulk data collection by shifting it to third parties.

The evidence of domestic terrorism in Western nations in recent years runs directly contrary to the harbinger theory. As Mueller and Stewart and others have shown, the future of terrorism is likely to be more like the pre-9/11 past: lone-wolves or small, disparate groups with more limited capabilities. Recent attacks in Paris, Ottawa, and Sydney confirm this. One of the principals in the Charlie Hebdo killings had received training from an al Qaeda affiliate in Yemen in 2011, but little more. The men involved in the Ottawa and Sydney events were known to police and acted alone.

Security. CC0 via Pixabay.
Security. CC0 via Pixabay.

Yet, in keeping with the harbinger theory, governments have been quick to draw a connection between recent terror and ISIS, a large transnational entity with greater capacity. In the wake of the attack on Parliament, Canada’s Prime Minister Stephen Harper asserted: “The international jihadist movement has declared war…” The epicenter of the threat is the “entire jihadist army that is now occupying large parts of Iraq and Syria.” The US and French governments have also tied ISIS to the prospect of further domestic terror, ignoring ample evidence that ISIS is, as Ahmed Rashid put it, “not waging a war against the West.”

Despite the tenuousness of a link to ISIS, Canada, France, and Australia have sought to justify significant new measures in light of it. Canada’s bill C-51 gives security intelligence service the unprecedented power to seek a warrant to breach any Charter right — not only those protecting against unreasonable search and seizure — if believed to be necessary to thwart a terror plot. France is debating a mass surveillance bill, while Australia will likely adopt a law that strips terror suspects of citizenship.

In each case we have to ask: What will the new powers accomplish? Would they have prevented attacks in Sydney, Ottawa, or Paris? Looking back, it’s hard to see how. Even with full surveillance, it would likely have been impossible to know how far along the path of radicalization certain individuals were prepared to go, until they got there. Yet by maintaining the perception of domestic terrorism as part of a larger war, questions of cause and effect become moot, and de facto emergency powers persist.

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