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3 Research Papers 1-2
Human Rights Conflict
Prevention Centre, Univerzitet u Bihacu
THE LAW AND PSYCHOLOGY OF ANTI-TERROR
By Anthony Peirson Xavier Bothwell <![if !supportFootnotes]>  <![endif]>
impacts of the new terrorism have had a dramatic transforming effect
on American law in the areas of executive power and civil liberties.
The attacks of
upon taking office in January 2001, actually cut back on anti-terrorism
initiatives, while expanding the military budget (and increasingly
conducting government business in secret).
After the attacks on
The American people, in a state of shock after 9/11, and disturbed by anthrax mail incidents and threats of new terror, have supported the presidential policies by and large without critical thought. The opposition party, dumbfounded and fearing voter disapproval of any dissent, has failed to make the case that competent intelligence and enforcement of existing laws would be more a more effective strategy than trampling on the civil liberties of the people. In fact, a few prominent Democratic senators, who dared oppose the Homeland Security bill beause it was loaded with frivolous favors for Republican donors, were denounced as unpatriotic and defeated in the November 2002 elections.
Principles of psychology,
which explain attitudes and actions of individuals, likewise can
explain policies and behavior of communities and nations.
The study of communication psychology can illuminate political
trends that bring about changes in the law.
Public opinion rarely is changed by mere rhetoric or logic.
There is a natural human tendency to shut out information
that is contrary to preconceived beliefs.
Undeniable facts often are repressed psychologically. People tend to deny or refuse to perceive the
hardest, most unpleasant information.
Thus it is more convenient to contemplate fictions presented
Sentiments and dogmas shaken loose by traumatic events cease to impede policy decisions theretofore unthinkable. New cognitive dissonance has induced voters, legislators, bureaucrats and judges to change fundamental notions about what intrusions on domestic freedom are necessary or desirable to safeguard against acts of mass violence. Politicians in the opposition party have been traumatized by the events of 9/11, anthrax attacks, periodic official warnings of imminent terrorist actions, an amazingly comprehensive assault on civil liberties, and the spectre of electoral abyss for dissidents who might labeled as unpatriotic or worse. In one of the most chilling moments in American history, Attorney General John Ashcroft told a Capitol Hill hearing, “To those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists.” <![if !supportFootnotes]>  <![endif]> Whether in spite of or because of the attorney general’s crude attempt at intimidation, there has been precious little public debate regarding major curtailments of personal liberty.
Members of Congress, who temporarily evacuated the Capitol following the 9/11 attacks, acted with unaccustomed haste to approve legislation perceived as doing something about terrorism. The Senate passed the Combating Terrorism Act of 2001, creating new federal offenses and redundant wiretap powers, within 48 hours of the 9/11 attacks. Advocates of Big Brother methods spent years writing the USA PATRIOT Act, <![if !supportFootnotes]>  <![endif]> which vastly enhances government power to spy on Americans. Elected representatives in Congress passed the USA PATRIOT Act into law so fast that they did not read the 168-page statute.
Despite the system
of checks and balances put in place by the framers of the U.S. Constitution,
few voices have been raised on Capitol Hill in opposition to post-9/11
claims of power by the Executive Branch.
Hundreds of non-citizen residents were disappeared in the
The administration’s assault on civil liberties has been so sweeping and rapid as to boggle the mind. Political leaders, off-balance and afflicted by post-traumatic stress, have paid no heed to constitutional guarantees of due process <![if !supportFootnotes]>  <![endif]> and internationally recognized human rights. <![if !supportFootnotes]>  <![endif]> They have failed to make the case that due process provides a useful assurance that it is the guilty who will be punished, and should not be denied to anyone, anywhere. <![if !supportFootnotes]>  <![endif]> They have shown no interest in reports of mistreatment of prisoners of war. And they have failed to make the case that public trials in civilian courtrooms can be an effective showcase for the world to see the American system of justice.
In the absence of meaningful
debate, little consideration has been given to the idea that effective
counterterrorism does not require a totalitarian-style police state,
but rather demands more competent intelligence and police work. Each week, hundreds of government employees
contact lawyers to report mismanagement in the nation’s campaign
against terrorism. Most of
these civil servants never go public because, with good reason,
they fear retaliation. One who did go public blew the whistle on the
Federal Bureau of Investigation’s pre-9/11 failure to follow up
on terrorism leads in
An even more shocking
story is told by sources who still fear to come forward:
The new dissonance
drastically has enhanced public readiness to support aggressive
military operations abroad as well as incursions on liberty at home.
Americans of every ethnic background, interpreting foreign
events through a post-9/11 lense, generally
have a fear-driven proclivity to accept the clarion call for
It is customary and
indeed sine qua non in a democratic society, unlike
a totalitarian system, to have robust public debate when government
leaders propose unprecedented foreign adventures. However, there has been no public debate in
Senator Robert C. Byrd,
for one, protested the tendency of the current administration to
send troops to foreign lands without informing Congress.
The White House originally said it could launch
a war against
The new reality, so suddenly and comprehensively imposed, does not admit of theories other than those introduced by the highest government officials. If someone had wanted to cause American voters to accept a police state in their own country and a militaristic approach to foreign affairs, a more effective catalyst than the 9/11 attacks could not have been conceived. And yet, counterterror acts of the government in turn have triggered psychopolitical aftershocks likely to have reverse consequences for policy and law itself. The pendulum inevitably swings in the yin and yang of American politics and jurisprudence. Mass fear, while opening the door to fascistic policies, at the same time has fostered anguish among those who have been maligned unfairly and those who empathize with their plight. <![if !supportFootnotes]>  <![endif]> Citizens who are not targets of extreme government tactics eventually begin to realize that the diminution of the liberty of one person diminishes us all. <![if !supportFootnotes]>  <![endif]>
Acceptance of extreme
government actions in the name of fighting terror will have a traumatic
effect upon the whole nation,
creating new social cross-currents, new cognitive
dissonance and potential for popular backlash.
The general who directed torture and summary execution of
terrorists in colonial
President Lincoln exhibited
a wise sense of balance in dealing with domestic insurrection that
has relevance to antiterror policy today. In a letter urging the secretary of war to discharge
Confederate prisoners of war who wished to pledge allegiance to
the Union instead of being returned to the South,
In using the strong hand, as now compelled to do, the government has a difficult duty to perform. At the very best, it will by turns be both too little and too much. It can properly have no motive of revenge, no purpose to punish merely for punishment’s sake. While we must, by all available means, prevent the overthrow of the government, we should avoid planting and cultivating too many thorns in the bosom of society. <![if !supportFootnotes]>  <![endif]>
<![if !supportFootnotes]>  <![endif]> B.S.F.S., Georgetown University School of Foreign Service; M.S., Boston University School of Public Communication; J.D., John F. Kennedy University School of Law; LL.M. summa cum lude, Golden Gate University School of Law. The State Bar of California; National Lawyers Guild; American Bar Association; International Bar Association.
“Fourty-four percent of
David Davios, a box-office
analyst for Houlihan, Lokey,
Howard and Zukin, an investment banking
firm, found a closer parallel to the current [movie-going] boom
in the years immediately following
<![if !supportFootnotes]>  <![endif]> “Festinger’s Cognitive Dissonance theory model has perhaps produced the greatest amount of research among the consistency theories. Basically, the elements are any two pieces of information a person has. These are said to be in a dissonant relation to each other when, ‘considering these two alone, the obverse of one element would follow from the other’…. Dissonance, then, induces a motivating force acting either on the nondetermined element, on the relationship between the two elements, or on the person’s ability to tolerate the dissonance. …[D]erivations from dissonance theory predict that with increasing dissonance, the person will seek out ‘consonant’ information to reduce the dissonance and will avoid ‘dissonant’ information that might increase it.” Jack M. McLoed, The Contribution of Psychology to Human Communication Theory, in Frank E. X. Dance, ed., Human Communication Theory: Original Essays (1967) 212-213.
Senate testimony of Attorney General Ashcroft
reported by Ron Dylewski, in Ashcroft
Defends Antiterror Plan; Says Ccriticism
May Aid U.S. Foes, N.Y. Times (
<![if !supportFootnotes]>  <![endif]> Public Law 107-56, 115 Stat. 272, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
<![if !supportFootnotes]>  <![endif]> President Bush’s order as commander in chief on Nov. 13, 2001 authorizing establishment of military commissions to conduct trials of accused terrorists, apparently written in haste, contained grammatical and typographical errors as well as constitutional errors. Although the Defense Department later issued regulations that address some of the constitutional problems, the commission procedures still fail to satisfy requirements of a fair trial ordinarily observed in civilian courtrooms and military courtsmartial.
<![if !supportFootnotes]>  <![endif]> U.S. Constitution, Amendment V (“No person shall be… deprived of life, liberty, or property, without due process of law….”)
<![if !supportFootnotes]>  <![endif]> Universal Declaration of Human Rights, Article 7 (“All are equal before the law and are entitled without any discrimination to equal protection of the law”); Article 9 (“No one shall be subjected to arbitrary arrest…[or] detention”); Article 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of…any criminal charge”).
<![if !supportFootnotes]>  <![endif]> “He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach unto himself.” 2 The Complete Works of Thomas Paine (P. Foner, ed., 1945) 588.
“In an explosive letter to the head of the FBI,
Minneapolis agent Coleen Rowley accuses the agency of thwarting an investigation
that could have helped foil some of the 9/11 hijackers. …. Before
Rowley came along, the Administration had succeeded in derailing…inquiries
by calling them unproductive and suggesting that its critics might
be unpatriotic.” Romesh Ratnesar and Michael Weisskopf,
How the FBI Blew the Case, TIME (
“Like a relentless drama too painful to watch but too
compelling to turn away from, the conflict in the
“The Constitution states that the president shall be
commander in chief, but it is Congress that has the constitutional
authority to provide for the common defense and general welfare,
to raise and support armies, and to declare war.
…. Yet in this war on terrorism, Congress, by and
large, has been left to learn about major war-related decisions
through newspaper articles. One
day we hear that American military advisers are heading to the
“When IRA bombs were set off in
“‘I am terrified
of you and all people who look like you,’ the elderly woman said.
‘What can you do to reassure me against people like you?’ I was in
Stephen F. Rohde, Esq., Then They Came for Me (inspired
by Rev. Martin Niemoller, 1937): “First they came for the Muslims, and
I didn't speak up because I wasn't a Muslim. Then they came to detain immigrants indefinitely
solely upon the certification of the Attorney General, and I didn't
speak up because I wasn't an immigrant.
Then they came to eavesdrop on suspects consulting with
their attorneys, and I didn't speak up because I wasn't a suspect. Then they came to prosecute non-citizens before
secret military commissions, and I didn't speak up because I wasn't
a non-citizen. Then they
came to enter homes and offices for unannounced ‘sneak and peek’
searches, and I didn't speak up because I had nothing to hide.
Then they came to reinstate Cointelpro
and resume the infiltration and surveillance of domestic religious
and political groups, and I didn't speak up because I had stopped
participating in any groups. Then they came for anyone who objected to government
policy because it aided the terrorists and gave ammunition to
“‘This is the real trauma for us,’ Dr. [Onder]
Ozkalipci says. ‘It
destroys the moral values of the nation, not just the survivor. When you start to accept torture as something
normal, it destroys your sense of humanity.
If you keep your silence, after a while it will destroy
you.’” Somini Sengupta, A Turkish Doctor’s Specialty: The Torture Victims,
N.Y. Times (
“The best way to make a terrorist talk when he
refused to say what he knew was to torture him.
…. I was indifferent. They had to be killed; that’s all there was
to it.” Gen. Paul Aussaresses,
qu. by Suzanne Daley, in
“Many families of Sept. 11 victims had expected to give
their support to the creation of a Department of Homeland Security
as a strong indication of the country's determination to prevent
another attack. But in interviews today many relatives, including
leaders of the largest family organizations, said they were surprised
at how bitter they felt about the partisan politics surrounding
the measure. Several expressed fury that Congress had inserted
special-interest provisions into the bill that might affect them
personally. …[For example,]
the measure includes a section inserted by House Republican leaders
that will limit the liability of airport screening companies for
any negligence they may have committed in allowing box cutters
aboard the planes that day. Relatives of victims who were planning
to sue the screening companies for damages found a possible avenue
of compensation and information closed.” David Firestone, Domestic Security Bill Riles 9/11 Families, <www.nytimes.com>
<![if !supportFootnotes]>  <![endif]> President Abraham Lincoln, letter to Secretary of War Edwin M. Stanton (Mar. 18, 1864), VII The Collected Works of Abraham Lincoln (Roy P. Basler, ed., 1953) 257.