FP7-SEC-2007-217862
DETECTER
Detection Technologies, Terrorism, Ethics and Human Rights
Collaborative Project
Paper on Taking Moral Risks given an Analysis of What is Wrong with Terrorism in Various Forms
D05.3
Due date of deliverable: 30/11/2010
Actual submission date:
Start date of project: 1.12.2008 Duration: 36 months
Work Package Contract and Lead: WP03 Professor Tom Sorell UoB
Author: Dr. John Guelke
Revision [draft]
Project co-funded by the European Commission within the Seventh Framework Programme (2002-2006)Dissemination Level
PU / Public / X
PP / Restricted to other programme participants (including the Commission Services)
RE / Restricted to a group specified by the consortium (including the Commission Services)
CO / Confidential, only for members of the consortium (including the Commission Services)
Executive Summary
1. Terrorism is the use of severe force for political ends. In contrast to, say, warfare, force is used to pursue these ends indirectly, frequently symbolically. This involves harming people or damaging property. This harm is not the ultimate end, but a mere means – a fact which deepens the morally objectionable nature of the act. The threat to life that such acts frequently entail justifies the use of some of the most morally risky investigative techniques, in line with the investigation of murders or serious organised crime.
2. Counter-terrorism has developed against a background of moral controversy. Partly this is because organisations like governments operate on the basis of precedent- setting rules, and are expected to be answerable to the public for discharging certain responsibilities, including responsibilities for security. This means that governments are under huge pressure to capture people responsible for terrorist outrages and to do everything possible to prevent them. At the same time they are also expected to discharge these responsibilities without violating the public’s moral standards – in Europe Liberal Democratic standards – and to do so in an efficient and cost effective way.
3. These competing pressures are particularly difficult to resolve in responding to terrorism. This is because terrorism is inherently difficult to detect until it is too late, meaning that any effective attempt at prevention is highly likely to involve both intrusion and false identification. Countenancing such objectionable features of policing measures is furthermore damaging to relations of trust most conducive to an effective response and the open democracy that is meant to be the object of defence.
4. Detection technology enters this picture in a number of ways. In the best case they do so by enlarging the abilities of the policing authorities to penetrate the zones of privacy of terrorists, using them to conceal weapons and plots, while improved analytical techniques maximise the usefulness of existing information. Even in this best case scenario the moral costs have to be weighted in a measured and proportionate way, and the line between rigorous investigation of every possibility and counterproductively alienating the public may be a fine one indeed.
5. There is reason for concern that some of the risks of counter-terrorism are being taken for no significant benefit to public safety. It is for government to take the lead in ensuring that moral risks are taken only where effective means to the end of preventing terrorism.
Introduction
Determining what terrorism is and what is wrong with it ought to offer some insight into the question of which measures can be justified in addressing it, in the same way that an appreciation of the wrong involved in theft or murder can clarify what measures are proportionate to addressing them. However, the term ‘terrorism’ is used in a great variety of ways to make a number of different distinctions. The term has been used to distinguish violence which does not observe norms of non-combatant immunity from that which does; that targeting the innocent from that targeting the so-called guilty; low level warfare from full blown warfare; the violence of non-state groups from that performed by the state; and even violence rejecting any normative restraint from that which does; Another issue obscuring a clear understanding of which offenses ought to count as ‘terrorism’ is that the word is clearly a term of opprobrium: to describe an act as terrorist is to condemn it as illegitimate. This rhetorical role threatens to overwhelm the term, reducing it to nothing more than a label for ‘violence of which I disapprove’.
Determining the wrong involved in terrorism, and how severe a wrong it is, is important to deciding what measures can properly be used in the fight against it. The great increase in the use of detection technology by policing authorities has been objected to on moral grounds as a disproportionate response to the problem of terrorism and motivated by commercial considerations. In this paper I attempt to clarify which uses are an appropriate response to this problem. In section 1 I will discuss what is wrong with terrorism. In particular I will identify some of the dangers of definitions that have been formulated in response to debates in ethical theory. Analysis here has implications for the conduct of counter-terrorism and what actions can be morally justified. These implications are taken up in section 2. Here I discuss a number of the broad reasons why counter-terrorism has historically been such a site of moral controversy: the difficulty of finding even weak evidence of terrorist acts before they happen, the nature of government decision making and the poor value for money that particular counter-terrorist measures offer as compared with other potentially life saving endeavours. In section 3 I discuss the circumstances under which ‘the moral risks of detection technology’ – intrusion, the creation of error and erosion of trust – may be taken. Risking error varies in its permissibility depending on the severity and irreversibility of its consequences. The worst intrusions can only be committed on the basis of specific evidence about a person or location. However lesser intrusions are generally permissible in public places. Damage done to trust, while always a moral cost, is sometimes an inescapable byproduct of justifiable actions in pursuit of counter-terrorism. Although all these moral risks will be justifiable as part of responsible counter-terrorism policy, question marks over the effectiveness of detection technology have to be addressed for deployment to be on balance justified for governments facing a range of policy priorities.
1. What is Wrong with Terrorism?
The debate about the definition of terrorism stretches back at least to the post World War II period and has been largely conducted by political scientists and specialists in law. Since September the 11th a number of moral philosophers have added their contributions to this debate.[1] This recent literature has also devoted much attention to a second, closely related question: ‘what is morally wrong with terrorism?
I defend the view that terrorism is serious violence employed in an indirect, or non-military manner towards a political aim. What is morally wrong with it is both the use of serious violence, which prima facie is inherently objectionable, and also the fact that the likely results of such violence will be further violence, destabilisation and risk to public safety. My approach differs from overinclusive accounts such as that provided by the 2002 EU framework decision and also from underinclusive ones such as the claim that terrorism is the targeting of the innocent.
Terrorism should be conceptualised tightly around the immediate means used, focussing on serious uses of force – that which endangers life or critical infrastructure. The EU framework decision of 2002 is arguably too wide in this regard. It lists three aims and nine possible means, where using a listed means in pursuit of a listed aim is considered sufficient to count as terrorism. The three aims are ‘seriously intimidating a population’; ‘unduly compelling a Government or international organisation to perform or abstain from performing any act’; ‘seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation’. [2] At least one of the listed aims is too broad – much of normal political activity could be construed as attempting to ‘unduly compel’ governments and international organisations to act differently than they would have done otherwise. Likewise the categories of seriously intimidating populations or destabilising political etc. structures appears to leave the question of the threshold for how intimidating or destabilising an act would have to be to qualify open to interpretation.
The listed means are (a) ‘attacks upon a person’s life which may cause death’; (b) ‘attacks upon the physical integrity of a person’; (c) ‘kidnapping or hostage taking’;(d) ‘causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform located on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss’; (e) ‘seizure of aircraft, ships or other means of public or goods transport’; (f) ‘manufacture, possession, acquisition, transport, supply or use of weapons, explosives or of nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons’; (g) ‘release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life’; (h) ‘interfering with or disrupting the supply of water, power or any other fundamental natural resource the effect of which is to endanger human life’; (i) ‘threatening to commit any of the acts listed in (a) to (h)’.[3] Some of the ‘means’ in question also appear to be satisfiable by activity surely too innocuous to count as terrorism. For example, ‘extensive damage’ to ‘government or public facilities...or public places’, or indeed ‘seizure of public...transport’, while far from trivial offenses, would not be an inconceivable development of the current wave of protests sweeping Europe which have seen extensive damage to political party headquarters in the United Kingdom[4] and the burning of police cars in Spain.[5] The point is not that the right to political protest licenses any violent activity, but rather that crudely and clumsily labelling such violence as ‘terrorism’ would be inflammatory and counter-productive.
Accepting that it is important to label only serious acts of violence as terrorism, we might think that the term ‘terrorism’ is appropriate only to attempts to kill, or to life threatening violence.[6]
Such an approach would have a further virtue of fitting one of the most influential approaches to defining terrorism in the current philosophical literature. This is the approach that defines terrorism as politically motivated violence that targets the innocent (or more broadly that distinguishes it as violence ‘insufficiently observant of noncombatant immunity’). However, this account is underinclusive, as it fails to take full account of the variety of different groups that have pursued terrorist tactics. The fact that terrorism often targets non-combatants is one of its most morally objectionable features, but focussing on the morally worst features of terrorism as the basis for a definition of terrorism has disadvantages. Many acts which are overwhelmingly perceived as ‘terrorist’ violence would, on such an approach, have to be recategorised as something else, such as paramilitary or substate use of force. This sort of approach to the definition of terrorism therefore fails, and it is an inappropriate basis for determining the right policy responses to terrorism.
It should nevertheless be noted that the ‘killing innocents’ view does have a further virtue: it treats terrorism as a tactic and no presumption is made about the identity of the perpetrator. Terrorism, then, is unambiguously a tactic that can be pursued by anyone – whether individuals, groups or governments. It has been one of the main trends of the extensive terrorism literature in the 20th century to highlight the fact that kinds of violence described as ‘terrorist’ are frequently indistinguishable from that employed by states. (This observation has formed the basis of a critique of definitions that stipulate that terrorist violence can only be the work of a non state actor. This stipulation has frequently been a part of legal definitions and international agreements. The EU framework decision of 2002 reflects the modern recognition of this fact, leaving the conceptual possibility of the actions in question being performed by state actors, insisting only that the behaviour of armed forces during conflict, already subject to international law, are not governed by the framework.[7]) The tendency to think of the problem in terms of ‘terrorists’ or ‘terrorist ideology’ is misleading. We do not worry about the dangers of ‘pincer movement ideology’ or attempt to stop ‘pincer movementists’ distinct from our worries about individual uses of such a tactic.
The view that terrorism is the indiscriminate killing of civilians has nevertheless been very influential in recent years.[8] Some opponents of the ‘killing innocents’ approach claim that it makes terrorism immoral by definition.[9] It lacks the neutrality needed to clarify debates about the substantive matters of tackling and preventing it. However, the charge that the ‘killing innocents’ view makes terrorism wrong by definition does not hold. Indeed the approach’s defenders have correctly pointed out that terrorism in this view is a tactic – and could theoretically be justified in a sufficiently desperate circumstance. Limiting ‘terrorism’ to attacks targeting the innocent does, however, set the standard for any possible justification very high. Terrorism is not necessarily wrong on this definition, but it is very likely to be wrong. Of course, the fact that ‘terrorism’ turns out to be nearly always wrong on a particular definition is not an objection in itself, but in light of the fact that many attacks that do not target the innocent ought to count as terrorism, such a definition may set the standard for justification artificially high. The ‘killing innocents’ view detaches cases of deliberate killings from the vast range of other acts commonly regarded as ‘terrorism’. Politically motivated acts of violence that target soldiers or military targets are labelled as terrorist acts.[10] (And, indeed, if states were to pursue campaigns of, say, intimidatory or revenge violence against a substate paramilitary group this would properly be regarded as terrorism too).[11] In response to this a defender of such a conception might decide to dig in their heels and simply insist that when, for example, the IRA attacked soldiers or engaged in sabotage that this was not terrorism – that terrorism was only committed when they took action that posed a threat to civilians.[12] Though note that this is highly revisionary of conventional usage.