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Constitutionalism Across Borders in the Struggle Against Terrorism

Constitutionalism Across Borders in the Struggle Against Terrorism

Edited by Federico Fabbrini and Vicki C. Jackson

This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders. What emerges is a picture of the complex interplay of constitutional law, international law, criminal law and the law of war, creating webs of norms and regulations that apply in the struggle against terrorism conducted across increasingly porous borders.

Chapter 8: The deep dilemma of evidence in the global anti-terror campaign

Kim Lane Scheppele

Subjects: law - academic, constitutional and administrative law, terrorism and security law, politics and public policy, constitutions


In order to find terrorists, one has to know something about them. In this chapter, I will argue that the way evidence has been collected about potential terrorists after 9/11 has a great deal to do with the pattern of rights infringements we see in the global anti-terror campaign. Suspended between a “war model” in which intelligence agencies are tasked with evidence production and a “crime model” in which policing methods are used instead, key decision-makers in the global anti-terror campaign have turned chiefly to intelligence agencies to produce knowledge about terror. But because intelligence collection is not designed in most legal systems to produce information for use against individuals, the global anti-terror campaign has suffered from a deep dilemma of evidence. Many of the rights-infringing actions that have now become routine after 9/11 are traceable to this problem: intelligence-gathering gives leaders information on which they feel they must act but not the right sort of information to act against individuals in rights-protecting procedures. Bringing the anti-terrorism campaign back within the rule of law will require regulating intelligence agencies differently, so that they are capable of producing evidence that can be used against individuals while respecting their rights. Many of the specific worrisome measures that appeared after 9/11 are non-trivially traceable to this deep dilemma of evidence.

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