Page 140 - Privacy in a Cyber Age Policy and Practice

128 PRIVACY IN A CYBER AGE

2. Terrorists Cannot Be Handled Like Criminals

Critics of many security measures argue that terrorists could be handled
like other criminals and that no special counterterrorism programs are
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needed. There are, however, strong counterarguments that suggest that
terrorists should be treated as a distinct category of criminal. First and
foremost, dealing with terrorists requires a focus on preventing attacks
before they occur. This point is particularly evident in light of the concern
that terrorists may acquire WMDs. In bringing terrorists to trial after they
have turned part of a major city into a radioactive desert, which would
occur even if the terrorists merely used a dirty bomb, whatever deterrent
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benefit punishment might have is vastly outweighed by the magnitude
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of the harm already done. In any case, there is little reason to think that
those willing to commit suicide during an attack can be deterred at all;
such people have little to lose. None of the nineteen people who attacked
the U.S. homeland in 2001, terrorized a nation, and left a deep mark on the
American psyche can be brought to trial. Even terrorists who are not bent
on committing suicide attacks are often “true believers” who are willing
to proceed despite whatever punishments the legal system might throw
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at them. Law enforcement assumes that punishment after the fact deters
future crimes (the intent is not to eliminate them but to keep them at a
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socially acceptable level). This premise does not hold when it comes to
acts of terror or bringing justice to terrorists, because the first priority of
counterterrorism is to thwart their designs rather than to try in vain to
capture and prosecute terrorists in the aftermath of an attack that often is
much more damaging than most criminal acts.
Affording terror suspects the right to legal counsel prior to undergo-
ing interrogation imposes a severe cost: information that can no longer
be acquired through questioning. One may suggest that a terrorist could
refuse to talk, even if not granted this privilege. However, adhering to
the regular law enforcement procedures would require that, if a terrorist
asks for a legal counsel, the authorities must no longer talk to him, offer
deals, or give incentives, let alone apply pressure. Given that terrorists
often act in groups and pose more harm than most criminals, the notion
of legally binding investigators such that they cannot adequately question
a terrorist who has been caught—at least, until an attorney is found—
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tilts too far from protecting the common good. One may say there is
already a “public safety” exception that applies to emergency situations.
When dealing with transnational terrorists, this should be the rule, not
the exception. 56
In addition, the criminal procedures of open arrest records, charg-
ing suspects within forty-eight hours under most circumstances, and