This chapter demonstrates how transnational counter-terrorism is used to shape, license, and excuse domestic actions that have direct and intimate impacts on the individual and on the relationship between state power and accountability in the counter-terrorism domain. The chapter considers how transnational counter-terrorism disrupts modes of managing the relationship between international and domestic law. It shows that transnational provenance is often used as a proxy for domestic tests of proportionality, constitutionality, and necessity, thus undermining politicisation and national constitutional arrangements. Finally, the chapter considers the impact of transnational counter-terrorism on the relationship between the state and the individual, showing that states routinely capitalise on the impulses and atmosphere of the transnational counter-terrorism order to securitise dissent and opposition, and that transnational counter-terrorism enables states to recast citizens as terrorists whose rights can be treated as forfeited, even where this leaves such citizens in situations of grave vulnerability, including exposure to torture or inhuman treatment.

In June 2021, just as the production of this book was nearing completion, the General Assembly completed the seventh review of the Global Counter-Terrorism Strategy and adopted General Assembly Resolution 75/291. As mentioned in Chapter 4, this (usually biennial) review had been delayed from 2020 due to the COVID-19 pandemic, and the 2021 process was co-facilitated by Spain and Oman. Importantly, it involved civil society to a greater extent than had been the case in previous review processes. Notably, though, civil society was most successful in communicating the challenges it encounters on the ground and bringing solutions and proposals to the process through engagement with individual states, as well as in the discussions facilitated or enabled by the co-facilitators and, at times, the mandate of the UNSRCT.

In the General Assembly resolution on the seventh review, which stretches to over 100 operative paragraphs, the core propositions of transnational counter-terrorism considered throughout this book are re-affirmed.

This chapter problematises the expansion of transnational counter-terrorism, demonstrating that transnational counter-terrorism was set up with such expansion in its sights, and – most importantly – that the expansion has not ended yet. It uses the examples of borders, preventing/countering violent extremism (P/CVE), and internet regulation to illustrate the reach and effects of expansionism. Finally, it draws attention to growing tendency at transnational level to present counter-terrorism as a mode of human rights protection and fulfilment, with significant consequences for the possible future extension of counter-terrorism into human rights. The chapter shows that transnational counter-terrorism sprawl is partly a self-perpetuating technique; its sprawl at once suggests the severity and scale of the problem of ‘terrorism’ and empowers and expands the transnational counter-terrorism order itself. It tends towards establishing the indispensability of transnational counter-terrorism and, thus, towards securing its future as a powerful mode of transnational governance.

If the transnational counter-terrorism order is to have any claim to legitimacy, it must enact a meaningful commitment to accountability. This chapter illustrates how such a commitment is largely absent from transnational counter-terrorism, showing that the accountability is frustrated by the institutional dominance of the Security Council and the informality of the institutional infrastructure. While the Office of the Ombudsperson and the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism undertake important accountability work, they are structurally and materially limited in their ability to hold the order to account. The chapter argues that meaningful accountability may not be possible in transnational counter-terrorism, because the order operates precisely in the way its promoters, hegemons, and institutions want it to.

The law of transnational counter-terrorism comes in various forms, encompassing hard-law instruments like Security Council resolutions, regulatory instruments like good practices or guidance, and managerial instruments like the Global Counter-Terrorism Strategy. Law is a critical instrument in the post-9/11 approach to developing, reorienting, and globalising a particular orientation towards counter-terrorism. This chapter outlines the dynamics of transnational counter-terrorism law, considering the Security Council’s ascendant position as a lawmaker in this field, the ways in which the regulatory activities of informal institutions are ‘hardened’ through Security Council engagement (thus identifying them as pseudo law-making entities), and how the approach adopted in the Global Counter-Terrorism Strategy reinforces these practices. The chapter shows how, through the variety of its forms and addressees, the law of transnational counter-terrorism transports the logics of transnational counter-terrorism into everyday practices of administration, criminal justice, surveillance, all the while marginalising rights.

The embrace of counter-terrorism techniques in the COVID-19 pandemic suggests that they has become part of the transnational muscle memory – a go-to solution when a new or immense challenge arises. Leveraging transnational counter-terrorism to respond to new crises in this way legitimates it as ‘useful’, ‘effective’, and a ‘normal’ part of governance, expanding and extending the reach of counter-terrorism actors and apparatus within the international and domestic systems. Eschewing optimism in the repairability of the transnational counter-terrorism order, this conclusion warns that mitigations such as institutional reforms, better and more precise references to human rights law, or the increased participation of civil society may allow for lawyers to mediate the fundamental problems of the practices of transnational counter-terrorism, but they cannot resolve them. The problems run too deep for that.

Transnational counter-terrorism is a crowded field dominated by closed institutions. They include formal international organisations, informal international or multilateral institutions, hybrid entities, private actors, and regional organisations. National authorities and states are also part of this transnational milieu, implicated as members of international organisations and institutions, as founders and funders, as co-ordinators, and as implementers. This chapter argues that consideration of institutions is critical to achieving insight into the dynamics of transnational counter-terrorism, and in particular to understanding the flows of power, norms, and activity across different scales of transnational counter-terrorism, as well as from counter-terrorism to other fields of activity. It then considers the institutions of transnational counter-terrorism: the UN Security Council and its subordinate entities, the General Assembly, the members of the Global Counter-Terrorism Coordination Compact, and informal institutions, organisations, hybrids, private actors, and others that have been drawn into the transnational counter-terrorism order.

This introductory chapter lays out the context and enquiries for the study. It outlines how the post-9/11 characterisation of terrorism as a matter of international peace and security globalised counter-terrorism, laying the groundwork for the development of a vast institutional, legal, and political order of transnational counter-terrorism. It critiques the continuing failure to develop a binding, international legal definition of terrorism in this light, and foregrounds the practice and problems of transnational counter-terrorism further developed in the chapters that follow.

The UK Government says that it is committed to the ‘[o]versight, scrutiny and transparency of our counter-terrorism work’, which it considers to be ‘world-leading’. According to CONTEST: The United Kingdom's Strategy for Countering Terrorism, this ‘includes the reports we publish, the involvement of independent judges who review government agencies’ use of intrusive powers and government applications for TEOs and TPIMs, an independent reviewer of terrorism legislation, and accountability to Parliament’. In order to ‘listen and respond to improve our approach to keeping the public safe’, the Government says it will ‘continue to engage extensively with the public, civil society, academia and Parliament, and through community outreach’.

As it stands, this is as close to a complete account of the Government's understanding of counter-terrorism review as exists. Yet it is not comprehensive. Judges do far more in counter-terrorism review than review agencies’ use of intrusive powers or applications for counterterrorism orders. They also preside over criminal trials and appeals relating to terrorism offences and hear applications for judicial review and applications under the Human Rights Act 1998. Alongside the Independent Reviewer of Terrorism Legislation, there is an Independent Reviewer of the Justice and Security (Northern Ireland) Act 2007, and the Counter-Terrorism and Border Security Act 2019 provides for an independent review of Prevent. Parliamentary accountability includes the everyday work (including committee work) of the legislature, but also specific forms of counter-terrorism review and accountability. These largely comprise approving (via affirmative resolution) or not annulling (via negative resolution) orders laid before Parliament under counter-terrorism legislation, such as creating various codes of practice, proscribing and de-proscribing terrorist organisations, and continuing temporary counter-terrorism laws in force. Furthermore, just as counterterrorism is now part of the quotidian business of statehood, so too is counter-terrorism review part of the everyday business of the organs of state: the Executive, Parliament and the courts. Here we refer to how the constitutional labour of these branches may be applied to counterterrorism outside of specific and mandated reviews of counter-terrorism laws and policies. Civil society's role in counter-terrorism review is multifaceted and can include publishing reports on particular counterterrorism laws or policies, feeding into state-initiated reviews and initiating legal proceedings to challenge counter-terrorism laws and policies.

This opening paragraph of CONTEST: The United Kingdom's Strategy for Countering Terrorism demonstrates that counter-terrorism is everywhere in the contemporary UK. It has become a quotidian part of the law, institutions, activities and preoccupations of the state. Counter-terrorism is no longer temporary or exceptional. It is permanent and everyday, even though its effects and intrusions continue to be justified by the rhetoric of necessity, exceptionalism and extraordinariness. Within this counter-terrorist state, questions arise about how to give effect to the fundamental constitutional and democratic commitment to accountability. The answer, we argue, lies at least to some degree in an assemblage of actors, institutions and activities that we call ‘counter-terrorism review’.

Conceptualising counter-terrorism review

Throughout this work, we use the term ‘counter-terrorism review’ to describe the assemblage of actors, processes and actions related to accountability for the counter-terrorist state. Our use of this term is intended to move us past a narrow construction of counter-terrorism review as comprising only juridical processes of review. While judicial consideration of counter-terrorism law is part of counter-terrorism review, it is not sufficient to capture the broad range of activities to which the term could be applied. As Dawn Oliver tells us, ‘access to the courts alone cannot protect us from bad government’. While courts play a critical role in assessing lawfulness, this is not and should not be the only standard by which we might hold the state to account in counter-terrorism. In other words, while judicial review tells us something about counter-terrorism, that is largely limited to questions of law. Nor is political review sufficient: review through parliamentary committees or parliamentary debate is part of counter-terrorism review, but it is not all of it. We use the term ‘counter-terrorism review’ to include and go beyond these two forums (courts and politics) and their various review functions, even though the workings and relative merits of both are dominant in the literature of counter-terrorism ‘oversight’.

Our aspiration in this book has been to develop an empirically grounded understanding of counter-terrorism review in the UK. When does it take place? How does it work? Who is involved? What kinds of impacts does it have? These questions were motivated not only by the potential insights that might flow from considering as an assemblage a variety of activities and actors more commonly considered separately, but also by our curiosity about whether counter-terrorism review contributes to making the counter-terrorist state accountable in a meaningful way. We were thus engaged not only in an act of description but also of re-description, articulating an understanding of counter-terrorism and counter-terrorism review in the UK that attempts to shift it out of the zone of exceptionality and to assess it against the constitutional value of accountability.

Our belief in the necessity of that exercise reflects not only our longstanding concerns with evaluation, review and secrecy in relation to counter-terrorism, but also constitutionalist anxieties about the counter-terrorist state. In particular, if counter-terrorism is now part of the everyday business of the state, as we argue it is, and if counterterrorism review is presented by that state as a means of ensuring oversight and accountability, as it is, then does the review assemblage deliver accountability and, if not, can the counter-terrorist state make any claims to liberal democratic legitimacy?

As has become clear throughout this book, the answers to these questions are mixed. To some extent counter-terrorism review does involve entities in undertaking the kind of evaluative review that we argue can constitute accountability-enhancing activities. Reviewers do assess the merits of counter-terrorism laws, policies and measures against, at least, standards of legality and operational effectiveness. They do engage with reality by gathering data, including in some cases generating their own qualitative and experiential evidence bases. They also have capacity for action inasmuch as they are often forward looking and engaged in making proposals for change. However, counter-terrorism review also has serious shortcomings. For some review mechanisms, establishing and enacting independence in a way that makes them credible across multiple constituencies and stakeholders poses a real challenge. For others, the difficulty may be in making themselves heard within the counter-terrorism review assemblage, especially if they have been marginalised or have lower ‘status’ in the eyes of key stakeholders (such as the Executive) than other actors.