Comparative Legal Approaches to Homeland Security and Anti-terrorism (Homeland Security)

200 Pages·2007·0.65 MB·English

by  James Beckman

COMPARATIVE LEGAL APPROACHES TO
HOMELAND SECURITY AND ANTI-TERRORISM
Homeland Security Series
Series Editors:
Tom Payne, University of Southern Mississippi, USA
Tom Lansford, University of Southern Mississippi, USA
This series seeks to provide a body of case studies to explore the growing importance
and prominence of homeland security to national defence policy and to examine the
development of homeland security within the broader context of national defence policy
in the United States and other major developed states. This series will identify and
analyze the major threats that are particular to homeland security, as well as those that
affect broader national security interests. Comparative studies will be used to elucidate
the major similarities and differences in how states approach homeland security and
works which advocate new or non-traditional approaches to homeland security. The
series aims to integrate information from scholars and practitioners to provide works
which will influence the policy debate and examine the ramifications of policy.
Comparative Legal Approaches To
Homeland Security and
Anti-Terrorism
JAMES BECKMAN
The University of Tampa, Florida, USA
© James Beckman 2007
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical, photocopying, recording
or otherwise without the prior permission of the publisher.
James Beckman has asserted his moral right under the Copyright, Designs and Patents Act,
1988, to be identified as the author of this work.
Published by
Ashgate Publishing Limited Ashgate Publishing Company
Gower House Suite 420
Croft Road 101 Cherry Street
Aldershot Burlington, VT 05401-4405
Hampshire GU11 3HR USA
England
Ashgate website: http://www.ashgate.com
British Library Cataloguing in Publication Data
Beckman, James
Comparative legal approaches to homeland security and
anti-terrorism
1. National security – Law and legislation 2. National
security – Law and legislation – Case studies 3. Terrorism
– Prevention 4. Terrorism – Prevention – Case studies
I. Title
345’.02
ISBN: 978 0 7546 4651 8
Library of Congress Cataloging-in-Publication Data
Beckman, James.
Comparative legal approaches to homeland security and anti-terrorism / by James
Beckman.
p. cm. -- (Homeland security)
Includes bibliographical references and index.
ISBN-13: 978-0-7456-4651-8
1. National security--Law and legislation--United States. 2. National security--Law and
legislation. 3. Internal security. 4. Terrorism--Prevention. I. Title.
KF4850.B43 2007
343.73'01--dc22
2006031450
Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall.
Contents
Acknowledgements vii
Preface ix
Introduction 1
1 The United States 13
2 The United Kingdom 51
3 Germany 89
4 Spain 113
5 Russia 125
6 Japan 137
7 Israel 145
8 International Law Components—EU and International
Law Considerations 153
9 The Current Status of Homeland Security 163
Bibliography 171
Index 179
This book is dedicated to my wife, Maria Dawn Beckman.
If the world were filled with individuals with as noble and generous a spirit
as hers, there would be no need for a book of this nature.
Acknowledgements
First and foremost, I am grateful to Ashgate for the publication of this work, and
multiple individuals at Ashgate who assisted directly or indirectly in the publication
of this book. Also, my profound thanks are extended to the general editor of this
Homeland Security series, Professor Thomas Lansford (University of Southern
Mississippi). Professor Lansford recognized the importance of this topic as worthy
of inclusion as part of the larger Homeland Security series, and provided important
editing input, as well as administrative support during the writing of the book. I have
been fortunate to work on several projects over the years with Professor Lansford,
and have been repeatedly impressed with his knowledge and professionalism.
Second, I would like to acknowledge the strong institutional support provided by
the University of Tampa during my time working on this project. Specifically, the
University of Tampa provided a generous award of a research grant (the David Delo
Faculty Research Grant) to assist with expenses incurred in the research and writing
of this work. Additionally, I was fortunate to have the assistance of two incredibly
bright law students, Mr. Michael Stanski and Ms. Genevieve Whitaker, who assisted
with research and the compilation of materials needed to compose the chapters on
the United Kingdom (Chapter Two) and Israel (Chapter Seven), respectively. Mr.
Stanksi, a 2006 Honors program alumnus of the University of Tampa, was awarded
an Honors Program Undergraduate Research Fellowship in 2005 to specifically
assist with research for this book regarding the United Kingdom and its approach to
homeland security and anti-terrorism. Ms. Whitaker, a 2003 Honors program alumna
from the University of Tampa, and now a third year law student at Stetson University
College of Law, conducted research on the Israeli legal system for this book. Both
individuals were excellent students at UT, and the research conducted by both was
top notch graduate level research, and ultimately indispensable to the completion of
the U.K. and Israel sections of this book. Thus, I am indebted to both individuals for
their excellent research and assistance.
Third, any acknowledgement would be incomplete without recognizing the
support of my wife, Maria Beckman. A top rate lawyer and legal mind in her
own right, she is clearly the “better half” of our relationship, and I greatly value
her guidance and wisdom, on both this project and on a myriad of other issues.
I have encountered very few people with as sharp an intellect as hers. However,
beyond this, I am most grateful for her unconditional love and support during the
year and a half spent researching and writing this book. She sacrificed my presence
on many evenings and weekends, as I labored with some aspect or another of this
book. She also listened patiently to my comments about this project, and provided
key encouragement at several points when I thought this project might not reach a
satisfactory conclusion. For all of this, I am deeply grateful.
viii Comparative Legal Approaches to Homeland Security and Anti-Terrorism
Finally, any omissions or errors found in this work are attributable solely to the
author. I have done my best to delineate what I believe to be the most interesting and
germane aspects of each country’s approach to homeland security and anti-terrorism
laws—without getting too bogged down in the minutiae of specific statutes, cases
or constitutional provisions. Of course, the world is rapidly changing, and the
law rarely remains stagnant, so the aspects of a particular country’s approach to
homeland security and anti-terrorism laws will likely change in the coming years.
However, my hope is that the reader is able to identify and appreciate the major
differences and distinctions as to how each country attempts to protect the homeland
from the scourge of terrorism. These major differences and distinctions are not likely
to change as much over time, and also illustrate what policy determinations are
most important to each country and the majority of its citizenry. American W.E.B.
Du Bois once famously declared that “the problem of the Twentieth Century is the
problem of the color line,” and that adequate time and resources should therefore be
allocated to solving this problem. Countries such as the United States fortunately
did spend much time and energy in seeking solutions to the race problems during
the twentieth century. What then is the main problem of the nascent Twenty-First
Century? Within a year and a half of the dawn of the century, the horrific attacks on
New York and Washington, DC, occurred, causing thousands of needless deaths and
carnage, and instantly making the world’s population feel less safe and secure. Will
the problem of the Twenty-First Century continue to be the problem of terrorism? If
so, as with race relations last century, adequate time and resources must be allocated
in analyzing and attempting to solve the problem. My hope is that this book will
enlighten and inform those seeking to end the scourge of terrorism—and will offer
ways in which it might be done without needlessly sacrificing the positive values of
society and the sanctity of the Rule of Law.
Preface
This book presents an overview for the reader as to how domestic law enforcement
institutions, structures, laws, policies and agendas have generally changed since
September 11, 2001, across the globe. The basic premise/idea of the author is that
one country can learn from another country’s successes and failures utilizing a
comparative law methodology. This is not a recent fad or unusual approach. Indeed,
it is argued that
Aristotle, as far back as 350 BC, compared the constitutions of the various
Greek city-states utilizing a comparative analysis/approach. Similarly, Plato in his
book The Republic, as far back as 360 BC, advocated a comparative law approach
between nation-states. As American law Professor Mary Ann Glendon has written,
in summarizing Plato’s belief on the importance of the comparative law analysis and
in discussing the importance of comparative analysis in the context of Plato’s The
Republic):
Since the city must constantly be re-examining and revising its laws, its Guardians would
do well, he [Plato] advises, to send out mature citizens to study especially good laws
elsewhere, and to seek assistance from wise persons wherever they may be found, even
in ill-ordered cities.
Therefore, consistent with the goals of Aristotle and Plato’s admonitions (and
consistent with the overall aim of the series), this book will explore how various
other countries such as the United Kingdom, Russia, Spain, Israel, and Japan have
dealt with (or are dealing with) homeland security in the aftermath of 9/11, or other
similar recent terrorist actions in their country which may have prompted a change in
laws concerning homeland security and how to deal with the modern terrorist threat
against the nation state. Unfortunately, in recent years, many countries have had
“their own 9/11s,” including the bombing of the U.K. underground in the summer
of 2005, the bombing of a Spanish passenger train system in the spring of 2004, and
the seizures of both a Russian theatre and a Russian grade school (both resulting
in a protracted hostage taking situation and the deaths of hundreds of innocent
civilians) in 2002 and 2004, respectively. The United States is clearly “not alone”
in its war on terrorism. All of the countries selected for coverage in this book have
had to deal with their own internal acts of terrorism in recent years. Indeed, “many
European governments, including some that had criticized the United States for its
antiterrorism measures, have been extending their own surveillance and prosecution
powers” (Bennhold, 2006). Further, “human rights experts say that Europe, too, is
experiencing a slow erosion of civil liberties as governments increasingly put the
prevention of possible terrorist actions ahead of concerns to protect the rights of
people suspected, but not convicted, of a crime” (Bennhold, 2006). As the heading of