JURIST Guest Columnist Per Lægreid of the University of Bergen argues that Norwegian anti-terror laws should not be expanded to individuals planning terror attacks and that when faced with the choice between upholding individual liberties and attempting to prevent terror, individual liberties must prevail…

The new threat from terrorism seems to have lowered Western governments’ threshold for introducing far-reaching measures in the fight against terror and has heightened people’s tolerance towards such measures. This is perhaps most evident in countries like the US, the UK and Australia, where far-reaching anti-terrorist laws have been passed — though not unopposed. These new regulations provide the police and intelligence services with considerable new powers in the area of arbitrary arrest and detention. Several other EU countries, including Norway, have also passed anti-terrorist laws and introduced new measures in the wake of the September 11, 2001 terror attacks. These new laws and regulations shift the balance between individual freedom and government control, a development closely linked to the question of legitimacy of the public sector. A general trend is that when danger increases, liberties shrink.

In representative democracies, we now face a struggle to find a new balance between civil rights and individual freedoms on the one hand and the need for stronger internal security and safety on the other. Although issues like personal freedom, human rights and abuse of power related to anti-terrorist measures are fundamental for democracy, in Norway the public debate and general attention towards these questions has been moderate.

Only a few weeks after 9/11, a temporary ordinance that prohibited the financing of terror was issued by a royal decree. In December 2001, the Norwegian government presented proposals for anti-terror laws. Although not nearly as far-reaching as in other countries, they did represent something new in the Norwegian context. Until then, the concept of terror was not even mentioned in the Norwegian Penal Code. The anti-terror laws were to give the police wide-ranging powers in the area of technical tracing (like wiring and phone tapping) and included a general ban on financing terrorist attacks and planning or preparation of terrorist acts by two or more persons. Furthermore, extended opportunities for police surveillance in order to prevent terrorist acts were adopted in 2004. The Norwegian anti-terror laws as they appear today can be characterized as relatively moderate compared to other Western legislation, based on traditional Norwegian and common European legal principles. The public debate over the introduction of the post-9/11 anti-terror measures was limited. This indicates that there is broad support for, satisfaction with and trust in the ways security issues are handled.

After the terrorist attacks in Oslo and at Utøya, the Norwegian population, somewhat surprisingly, became more skeptical to using more draconian measures to fight terrorism. This echoes the response from the political executives in the aftermath of the terrorist attack that the answer should be more democracy, more participation and more humanity.

However, there is also an emerging debate on the need to strengthen the anti-terror laws. Last week a Norwegian court convicted two men accused of planning an attack against the Danish newspaper that published a cartoon of the Prophet Muhammad. They were found guilty of planning a terrorist attack and sentenced to seven and three-and-a-half years, respectively. This is the first conviction under Norway’s anti-terror laws. The sentence is not enforceable yet as it may be appealed, but for now, the conviction stands.

The assertion that they would not be convicted if the planning were done alone has actualized the discussion of whether it should also be illegal to plan a terror attack alone. It is not a good idea to criminalize the mere idea of committing a terrorist attack. Such a move would weaken privacy and individual rights because it would expand the mandate of the Police Security Service to conduct surveillance of individual citizens. It would produce unrealistic expectations about what can in practice be prevented. It is almost impossible to find out, let alone prove, what is going on inside the heads of individual citizens. The possibility of revealing criminal thoughts to convict someone for solo-planning would be minimal. To change the law in that direction would only produce a false sense of security and unrealistic expectations. The idea that terrorist attacks can be avoided if one uses all available means of power is an illusion.

We have to accept that we cannot protect against everything and that security and safety cannot be restored by use of stronger security measures. In the fight against terror and terrorism, we are faced with a difficult dilemma. Are democratic principles to be set aside in order to fight terror, or should a certain degree of terrorism be tolerated in order to uphold important basic rights? This is a difficult dilemma, but if we have to choose we should choose the latter option and affirm individual liberty.

Per Lægreid is a Professor of Administration and Organization Theory at the University of Bergen. He has written various articles on the Norwegian government and is a senior researcher at the Stein Rokkan Centre. He received his Ph.D. in philosophy from the University of Bergen.

Suggested citation: Per Lægreid, Norwegian Terror Laws Should Not be Expanded, JURIST – Hotline, Feb. 10, 2012, http://jurist.org/hotline/2012/02/per-laegreid-terror-law.php.