Introduction: Counter-terrorism judicial review: Beyond dichotomies

The contemporary context of terrorism and counter-terrorism is one in which the impossible has become possible. For most people the conversion of a passenger jet into a weapon that would be purposefully flown into civilian buildings at the cost of thousands of lives was unimaginable before 11 September 2001; today those era-defining images have seeped into the collective consciousness. It had been assumed that debates about the morality of torture had long since been resolved; not so it seems. An actual or perceived threat of terrorism has the capacity to greatly rupture our politics. It creates an atmosphere in which the ‘normal’ commitment of liberal democracies to constitutionalism and human rights is challenged, with illiberal measures being introduced and potentially embedded. The possible impact of such measures, and the febrile politico-legal counter-terrorism atmosphere, hold such significant possibilities that it is not surprising that understanding and responding to terrorism and counter-terrorism has become such an active field of legal, political, operational and scholarly endeavour. One approach to understanding and responding to (counter-)terrorism is to sometimes reduce the debate to simple dichotomies: terrorist v. freedom fighter; terrorism v. counter-terrorism; vengeance v. protection; fundamentalism v. necessity; security v. liberty. However, such an approach is unhelpful; it masks the murkiness of the subject. After all this is an area in which we cannot even agree on a definition of the core subject matter; as Walter Laqueur declared ‘disputes about a detailed, comprehensive definition of terrorism will continue for a long time and will make no noticeable contribution towards the understanding of terrorism’. The depth of this ‘murkiness’ is further reflected in debates as to the proportionality of responses to attacks or perceived threats, in disputes about the legality of new counter-terrorist mechanisms, and in political and other debates about how far a state ought to go to defend itself and its people against a seemingly uncontrollable risk of terrorist attack. In practice, this ‘murkiness’ has contributed to some extent to the design, appropriation, implementation and exercise of extensive powers of counter-terrorism, often without even a legislative basis. Even where legislation is used, it tends (at least relatively close to the attack in question) to be proposed by the executive and passed by a fairly compliant legislature.