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Counter Terrorism Today – 11/02/16

Counter-Terrorism and the Democratic Dilemma: how do liberal democracies defend themselves by passing counter-terrorism legislation; and, whilst being vigilant in the fight against terrorism, can Israel continue respecting the rights of individuals in its liberal democracy?

Three distinguished legal and political experts joined Counter Terrorism Today to tackle these questions in light of the Knesset’s proposed counter-terrorism legislation. Col. (Res.) Adv. Daniel Reisner, an expert on international law and defense, and a former advisor to five Israeli prime ministers, discussed the difficult line Israel must walk between human rights and security issues as it drafts the counter-terrorism law. Dr. Dror Harel, current research fellow at the ICT and a former legal advisor to the Prime Minister’s office, laid bare some of the weaknesses in the current bill, particularly the absence of any laws regarding cyber terrorism. Lt. Col. (Res.) Uri Ben Yaakov, a senior researcher at the ICT and the ICT’s representative to the Knesset on this issue, compared Israel’s efforts to those of other liberal democracies who fight terrorism.

The first question that Mr. Dan Diker asked his guests is the “elephant in the room” of Israeli counter-terrorism: why now? Israel has suffered decades of terrorism from inside and outside its borders; why did it take the Knesset so long to propose a comprehensive counter-terrorism law? Dr. Harel and Lt. Col. (Res.) Ben Yaakov admitted that to this day, a myriad of individual rules and regulations have sufficed. Adv. Reisner added that Israel, since its official declaration in 1948, has added strategies to fight terrorism on an ad hoc basis, in a reactionary manner. Few of these strategies were laws, instead the state created a “non-cohesive but quite comprehensive book of authority and power in anti-terrorism.” The feeling in the radio studio (and perhaps also the feeling of the Knesset), was that today, at last, there is sufficient motivation to bring these previous rules together. Dr. Harel argued that another political motivation of the Knesset is to make a formalized counter-terrorism law that can “answer national and international human rights standards.”

Adv. Reisner defined Israel’s “democratic dilemma” as the challenge to balance security and human rights in the legal fight against terrorism. He argued that this is the key challenge that has to be met in the new legislation. “On the one hand, [Israel is] one of the few countries in the world that has to deal with terrorism on a daily basis.” On the other hand, Adv. Reisner criticized that Israel’s legal fight against terrorism rests on archaic tactics reaching back as far as the British Mandate. The case Adv. Reisner made is that the face of terrorism has changed over the past decades, and now Israeli law has to change with it.

While Adv. Reisner criticized Israel’s reactionary legal policies of the past, Dr. Harel argued that the current bill does not have answers for counter-terrorism challenges of the future, such as cyber terrorism. She said that the absence of any mention of cyber terrorism in the current bill is “a big black hole,” and that “the main challenge of this law is that it looks at yesterday, and not at tomorrow.” Additionally, Dr. Harel noted that training and recruitment of terrorists happens largely over social media today, but that the law neither specifies such cyber activity as a crime, nor offer solutions of how to fight it. In the words of Lt. Col. (Res.) Ben Yaakov, the problem of the current bill “is not what is there, but what is not there.”

But what is terrorism, who is a terrorist, what constitutes a terrorist attack, and what constitutes a terrorist organization? These questions sound basic, but they are at the very core of the Knesset’s discussion of the current bill. If the current bill passes and becomes the official counter-terrorism law, someone wearing an “I love ISIS” t-shirt would be liable to be criminalized as a terrorist. Is the definition of terrorism too broad? Dr. Harel admitted that this is a problem, and one that has been raised in the Knesset committee. But she also shifted the focus, arguing that a greater problem is the definition of a terrorist organization. “How far do you cast the net?” The government is discussing those who enable a terrorist attack – the person that gives him shelter, the person that gives him a loan, the person that gives him technical expertise, the person that offers legal advice: are these people accountable? Are they part of the terror organization? Or are they simply passive actors on the sideline, perhaps unaware of the consequence of their actions? In Dr. Harel’s opinion, this is very unclear in the current legislation, and exemplified by the theoretical case of the person wearing the “I love ISIS” t-shirt.

Attention also turned towards comparative counter-terrorism: how do other countries legislate counter-terrorism, and can Israel learn from their experience? According to Adv. Reisner, the world is divided into three groups: the first group of countries is composed of failed states where terrorism reigns. The second group of countries includes Israel; these countries are constant victims of terrorism. They understand the problem of terrorism and try to come up with the right balancing act between security of the population and human rights for the individual. The third group of countries includes many states of ‘The West’: these countries change their balance between security and human rights only once they are hit themselves. Here, Adv. Reisner cited many examples: the UK’s hawkish counter-terrorism bills following 7/7; the USA, whose legal counter-terrorism landscape before 9/11 versus post-9/11, is “like day and night”; and France, whose leaders, shocked by the Charlie Hebdo and November 13th attacks, now discuss counter-terrorism legislation that they “would have laughed at two years ago.”

The Israeli Knesset certainly has its work cut out for them. Despite their many criticisms and suggestions to improve the current bill, all experts in the radio studio agreed that the Knesset’s push for a comprehensive counter-terrorism law is right, brave, and long overdue. If some revisions and additions are made to the current bill, and it passes through the Israeli parliament, it could catapult the country to the international forefront of the legal fight against terrorism.

Audio –