Anti-Terrorism Law: Close Encounters of a Fourth Kind

By Stephen Cheney

In conflicts, democracies are always to be found doing catch-ups with the advantage to the aggressor, the first attacker. The first attacker usually being a dictatorship, whether or not the dictatorship hides behind a more acceptable name, or a false democratic system with rigged voting, only one candidate, or a religious system that pledges universal love but disavows democracy. Democracies use diplomacy and negotiation in the hope of peace. Dictatorships use diplomacy and negotiation to gain time to resource war.

Democracies need some adjusting to their systems of prosecution to both ensure the incarceration of terrorists, especially to prevent terrorist acts from happening at all, and guarantee the freedoms of citizens from wrongful accusations.  For the powers needed to deal with Terrorism need to come willingly from citizens wary of losing their cherished freedoms.

Democracies are not at all designed to contest dictatorships nor guerrilla warfare of the type that terrorists use. Democracies are designed, in their open competitive systems, to prosper in an environment that is a surround of other similar democracies. Openness is simply used unfairly and insidiously by criminal elements, criminal governments and criminal terrorist types; they are adept at using the law to get around the law. In warfare (or competition where criminals are involved) there are no rules, no respect, no mercy. In criminal contests everyone is treated either as a criminal or as a victim; that is their outlook. In democratic contests, such as in court, everyone is treated as innocent and yet there is blood on the ground; proving guilt or criminal intention can be so much harder than getting off on a charge due to the defaulting murky sea of doubt. In the dark, there are more empty spaces than there are glimmers.

The current three main categories of law are Civil, Criminal and Military.

  • Civil law demands liability on a hurt, even a hurt to an aggressor, and has a special focus on probabilities rather than on evidence. 
  • Criminal Law has a focus on evidence available after a crime, only penalizing in the aftermath, not preventing crime. If the threat of jail actually prevented theft or murder there would already be hardly any such injustices. 
  • Military Law, for instance, in Martial Law, has a focus on preventing criminal activity, such as riots and looting; and, for success in international conflicts, it preserves national security by denying public access to classified military information.

I would argue that in modern times of crisis we now need to accept a fourth category of law: Anti-Terrorist Law, that runs an Anti-Terrorist Court separate from other courts. Its focus utilizes some aspects of the other categories: like Military Law it must preserve national secrets in a closed court and it exists to Prevent serious crimes – such as the slaughter of citizens on a large scale – rather than to just penalize after an event. Like Criminal Law, it must weigh evidence such as is available; but like Civil Law, it must have a focus on weighing probabilities before an act happens as it is vital for ensuring national security and public safety by being designed to try to prevent terrorist crimes, condemning on factors other than strict evidence. Conviction to Prevent: where the subject has proven Motive and Means but usually as yet no Opportunity to act. There may be no actual damage evidence before the Anti-Terrorist Court. The court may have to weigh on Capabilities, expressed Motives and Probabilities. A known motive becomes more prominent in the weighing: as evidence of damage, a la Criminal proceedings, may not be available. Anti-Terrorist Law with different court requirements and procedure comes out of the need for public safety and the survival of a civilised society.  No society can prosper if it does not recognize a deadly enemy and by adapting its legislation look out for its own survival.

As there arises a conflict between restricting terrorist activity on one hand and by the restricting of democratic freedoms on the other, a regulator is required to ensure that a government does not use its Anti-Terrorist Laws for a self-serving political dominance of its citizens.  The delicate balance of democratic principles versus practical principles warps democracy into employing some of the methods of a less free society.  If you don’t like to kill and yet your enemy kills, then you have to adapt and adopt unpleasant policies, and kill, or all that will remain in the victorious enemy and democracy dies with a naive lack of understanding and the initiative to act, a form of suicide by stupidity.  As is said: War does not determine who is Right, but who is left.  The world does not care who remains to live on, and what wonderful civilizations once were that through closeted inwardness and inactivity no longer exist.

Thus, I propose, as in the example of ancient Rome (where much of the West’s present laws originate), that Tribunes be appointed/voted to be present in the sessions of every Anti-Terrorist closed court case, to safeguard citizens against any excessive injustice. Citizens, if they are to be asked to give up some rights, need first a reassurance that the innocent will not suffer false accusations as a consequence. The Tribunes, a balance of power insertion, would need adequate powers legally granted to them, and be vetted as persons capable and, based on their dedicated history, trusted as honest by both the government and the people. They would need a top secret clearance capability. They will need training. The government has a major responsibility and need to ensure public safety, and the public has a need for confidence in the government’s claims of necessities and that public freedoms are held in the highest regard by that government. So public freedoms need to be enshrined and not shrouded.

The powers that a Tribune should have and how a Tribune should be selected/voted and trained need some debate and presumably ongoing adjustments.  The position should not be so restricted that their task cannot be done.  In court, IF the ‘evidence’ required for the conviction of a Terrorist, as legislated (which cannot just rely on evidence alone as that may not be to hand, but at least needs sufficient probabilities and motivation), is found in the opinion of a Tribune to be not satisfactory, then the Tribune can publicly state that and the whole matter then have to be reviewed (by whom and how, to be worked out) in the aim of preventing any government dictatorship tendencies and so retain public confidence in government. A Tribune is an alarm and extra safety valve; a guardian of the people.

Our courts, based on the Westminster system of two-sided debate by learned arguers, need an independent third party in-house to watch over them, so the lop-sided personal skills of each side, which are never exactly equivalent, don’t impede justice.

(Image: Military Court - Military Archives)

[The views expressed in this publication are solely those of the author(s) and do not necessarily reflect the views of Dissecting Society]


  1. My main concern is that any terrorist who makes it alive into a western court system will do $10's of millions of damage in court fees and 5-star incarceration as everyone from lawyers to prison guard unions helps themselves to taxpayer money. An army of social workers is often unleashed to deal with the social fallout. Will tribunes reduce costs or increase them? In most cases, terrorist will do more damage by being caught than by the acts themselves.

    Rome would have crucified them and left them as spectacles along the main commute roads, or sent them into the stadium to fight with beasts. With the blessing of the Tribunes.

    1. Hi Looney,

      So you would suggest extra-judicial killings of terrorists...?


    2. There are many possibilities between between the extreme limits of extra-judicial killing on the one hand, and judicial killing of the country on the other hand.

    3. Looney, a compromise between the two? I will think about it, thanks.

    4. Just pondering more of Roman law. The Code of Justinian made the owner of a slave liable for restitution of any damages that were done by the slave. Which of course brings up other considerations of the government that had Tribunes: These were representatives of the citizens, but in the original form (during the Roman Republic), it was nearly impossible for a foreigner to become a citizen, while there were plenty of slaves. So I am wondering who the Tribune represents in an open-borders society.

  2. Hi Cheney,

    "No society can prosper if it does not recognize a deadly enemy and by adapting its legislation look out for its own survival."

    This says it all.

    I agree that we need a new set of laws to deal with terrorism; a set that combines the three existing legal categories and perhaps add some other procedures specific to countering terror.

    Question: do you think that changes will have to be made to the existing Human Rights rules, before anti-terrorist law can be created?

    Awesome post, Cheney. Just awesome (I hope they listen).


    1. Human Rights must be given to all who advocate Human Rights. To those who are against Human Rights (Islam enshrines slavery in the Koran and that can never be disputed nor abolished; such as Surah 5:101 – and the Sharia Law penalty for questioning the Koran’s pronouncements is death). Sharia Law condemns Democracy, demands a Theocracy that religion and state are one and to be run by imams, not politicians, not citizens.

  3. For the people to willingly accept new laws to combat terror they have to suffer a major terrorist attack. Otherwise they will find any measure extremist.

  4. I am not in this article going into extermination on sight. Sometimes there is not time to arrest terrorists before an imminent attack and hard disruptive measures are indeed required. This article is only about the need for the public to give their full consent to anti-terrorism laws but recognises that the public first needs assurances that their precious rights will not be abused.

    To better meet the terrorist threat, flexibility in Law is required to meet changing situations, plus, as democracies are conglomerates of disparate groups and opinions, a clear protection of citizens rights is needed in order to gain a common consent to incarcerate based on probabilities prior to a terrorist attack, and not just on evidence that is only available after an attack. To allow convictions based on less than a criminal court requires, the voting public need confidence in their government that their government will not overstep the mark and falsely condemn citizens it doesn’t like.

    A Tribune is one mechanism that may make a difference, an auditor present at trail, representing the people, and of outstanding honesty in character (that would mean not many would be eligible). It is noted that too often judges seem completely out of touch with public opinion and they are a legal system supposedly based on public mores. Some judges, being warm and compassionate human beings are hesitant to harshly punish others, yet that is their role and duty. They are not suitable for the job in attitude although they are highly qualified academically.

    Too often criminals are given reduced sentences; are treated as if they are the victim; have their appeals overturn a full trial; are let loose because the jails are overcrowded; are heard and sympathized with and appeased for their opposing victims are dead; are considered to be able to apologise and change their character and thus be let loose on society as good citizens although their victims may suffer for life, if alive at all. Too many paedophiles are caught, tried, found guilty and then let loose (70 times in the case of one person (creep) in Victoria). It is then reasonable to question the capabilities of the judge, although the legal system refuses to allow that, it being god-like and harsh on critics. Contempt of court can be use to prevent dissent but sometimes such a ruling may simply outline a court’s contempt for public safety. Protect the criminal and condemn the people.

    Incarceration is the standard punishment for crimes, outside of fines, is seems a complete failure. I understand that the statics are: About 60 per cent of criminals, those caught again, end up back in jail. The criminal mind is a determined one and is not easily rectified. The Legal segment and politicians shrug their shoulders and say that it is the best system available, but that just highlights how hopeless and unimaginative those who lead and those who try cases try our patience and violate our sense of justice. Of course courts are not actually designed to dispense justice, they are only a far lesser being for the interpretation of legal writings ever out of date and trying to sort out the jigsaw pieces of reality some of which might get placed before them, some of which they toss out of consideration. Courts are of philosophy that narrowly considers, whereas science considers everything that it can. On the envelope hiding the real, Courts use tweezers to study the outside stamps for authenticity whereas science reads the letters within that identify all of a matter.

    A large proportion of the public distrust its government. The Arab Spring movement and the election, despite his obvious faults, of Trump, a self proclaimed non-politician, to U.S. presidency are examples. Asking the public to surrender some of its freedoms in exchange for a higher safety level, or even survival, is an expediency that will meet obstinate opposition. Statistics in the USA refer to say, half of its citizens believing in Conspiracy Theories. Conspiracy Theories are characterized by the opinion that the government (any government) is a conspirator and in its self interest is an enemy of the public that it supposedly serves, but that it rules. Conspiracy Theorists are also characterized by their tendency to believe in any and all Conspiracy Theories no matter how outlandish so long as the accusation is against a government or established authority. All evidence of any kind, no matter if of questionable value, supporting the Theory is taken as true, and any opposing evidence is disregarded or ignored. For if a government supports some evidence then the view is taken that it automatically must be wrong as governments are taken to be always hiding the truth deliberately. Governments, to retain order, must order people and through laws or restrictions tell them what to do. Freedom loving aspirants hate being told what to do, they are virtually anarchists or at least anti-government. A government’s position may be biased or not, but Conspiracy Theorists are always selective in evidence and thus have bias and Conspiracy Theorists can even be proud of their championing an illogical cause. The Theorists are on a witch hunt and don’t care which government they target.

    In order for the public to assist its government in exchanging some freedoms to obtain a higher degree of public safety, the people need to trust their government. Many people do not do so. In the USA there are major indicators of this, such as the defiance of the NCA gun lobby and also the fervour of the support for Conspiracy Theories. All such theories involve the government in place as the untrustworthy party. It doesn't matter how outlandish a Conspiracy Theory may be, the government is always taken as being wrong, deceitful, even criminal. Many supporters of Conspiracy Theories do not seem to believe in just one theory, but support all. An idea just has to be first presented and tagged as a Conspiracy theory for many to immediately accept it as true, for the opponent is assumed to be the government and the government to them is always a dark forbidding criminal. Governments enforce laws and laws do forbid and it is resented when there is an obstruction of wilfulness or the freedom for citizens to do as they please.

    When a society is beset by a deadly enemy that enemy’s movements and actions must be curtailed. Within a society’s legal boundaries that may mean that some freedoms and privacy commonly held must be restricted, redesigned, and even temporarily suspended in moments of dire peril. When the enemy is defeated then such unpleasant adjustments can be removed and freedoms restored. An enemy within utilizes all freedoms available to destroy its host society. A cancer cell does the same. If the enemy within the gates is not eliminated then a society so infected may not be able to continue to function and in the end perish.

    In order for a besieged government to obtain a mandate from its freedom loving people it must first gain their trust. Loved freedoms may have to be swapped for needed securities. When that happens, the fear of the public is that a tyranny will be born, as has happened so many times in the past. Power corrupts. So citizens may refuse to adapt to a new world and so perish at the hands of those who are against democratic law.

    The Law was designed to deal with local criminals, not with a foreign army of insurgents or inspired local insurgents, terrorist revolutionaries. Criminals want to unfairly prosper within a society at that society’s expense. An insurgent or terrorist with a foreign ideology wants to destroy a society and its law and replace it with their radical own.
    In a Western courtroom the experts are the Judge, and the Barristers for prosecution and defence. The jury, who must weigh judgement only from what is presented to them and from arguments of logic, supposition and manipulation, are not experts and yet have placed on their heads the responsibility to discern the truth and thence hand the suspect’s fate to the judge.
    A barrister is not just an expert at law, but also is an expert at manipulation and it is that talent which may often determine case wins and fees expected.

    As the weaknesses of the lauded Court system are so readily apparent to any citizen, that system could do with some adjusting. The excesses are timidness in sentencing by some well-meaning judges; the dominating talents of persuasion by some barristers and the ignorance of jurors that gives them no counter to deceitful persuasions. The common man is not usually an expert in law or in the sifting evidence or in withstanding manipulation. Jurors are picked to swiftly enter the courtroom and give judgement on what selective matters they are handed there. They are not given prior time to study subjects that would assisting.

    The Selection of a Tribune:
    People are known from their life history and by what they have chosen to get involved in and what they have done. Although honest persons may not be common, the best that can be done is to hold up as candidates those that the public thinks are honest, who have a record that reflects honesty. From such candidates the public could vote. Honesty is not a requirement of politicians who are masters of avoidance to information dissemination and the use of word manipulations.

    The Education of a Tribune:
    A study of legal process; of elocution; of logic and evidence procedures; of the psychology of manipulation and intimidation; of the scientific method; of the importance of national security. Any subject that would assist in discerning truth and unravelling deceit. Such matters are Not already taught to jurors and prior-to-trial study time for jurors would vastly delay a trial’s commencement. A top secret clearance would need to be obtained.

    Use of the Tribune
    Only those cases where because the national interest is involved and secrets of methods used against terrorists may be disclosed would there be need of use of a Tribune to safeguard the public interest. In closed court sessions where even the jury might not be allowed, a Tribune would be a guardian representative of the people. Being present in the full trial the Tribune would be a continuity of reason linking both closed and open courts. Where a Tribune deems a barrister is being too deceitful in order to fool the jury or court and by guile protect the paying client, the Tribune could discern and complain of such and demand correction. If a judge is too lenient at sentencing the Tribune could appeal to the Jurors to obtain their opinion. Think Tanks would need to be initiated and laws passed to assist the Tribune in duties and powers.

    1. Cheney,

      This comment would be a post in itself. Thank you so much for it: needless to say that I agree with its essence.



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