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A Comparative Examination of Counter-Terrorism Law and Policy
Journal of Korean Law
  • Laurent Mayali, Berkeley Law
  • John Yoo, Berkeley Law
Publication Date

This article conducts a comparative analysis of U.S. and European counter-terrorism law and policy. Recent attacks vy 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 vy 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 vy 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.

Citation Information
A Comparative Examination of Counter-Terrorism Law and Policy, 16 J. Korean L. 93 (2016)