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A Comparative Examination of Counter Terrorism Law and Policy

Professors Laurent Mayali and John Yoo, University of California at Berkeley Law School, discuss the US and European counter-terrorism law and policy.


Recent attacks by ISIS in the U.S., France, and Germany have revealed important differences between American and European approaches. Before September 11, 2001, the United States responded to terrorism primarily with existing law enforcement authorities, though in isolated cases it pursued military measures abroad. In this respect, it lagged behind the approach of European nations, which had confronted internal terrorism inspired by leftwing ideology or separatist goals. But after the 9-11 attacks, the United States adopted a preventive posture that aimed to pre-empt terrorist groups before they could attack. The Obama administration’s campaign of drone strikes in the Middle East and Africa against al Qaeda, Taliban, and ISIS leaders represents the culmination of this approach. Nevertheless, it has continued to rely on the criminal justice system when terrorist attacks developed within U.S. territory.

It has arrived at a hybrid system which tracks geography – the difference between at home and abroad – rather than enemy capability. The European approach has been different. The earlier confrontation with terrorism in France and the United Kingdom encouraged more robust legal authorities there. European nations, however, have struggled to respond to the international dimension of more recent attacks. They have incrementally expanded their existing powers used to address homegrown threats by Marxist-Leninist groups or secessionist movements, but have failed to successfully adopt a more preventive strategy aimed at the foreign roots of the current terrorist threat.

Keywords: Terrorism, Security, Comparative Law, Courts, Legislation, United States, Europe, Constitution

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