The Scholarly Commons


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The recent bombings in London and Madrid raise the specter of episodic terror attacks in the United States that fall short of the "mushroom cloud" scenarios discussed in the aftermath of 9/11 and the run-up to the Iraq war. Despite the smaller scale of these attacks, they have the potential to generate widespread fear and anger. This article builds on new work in behavioral law and economics to show how these emotional responses can generate systematic biases that motivate and direct counterterrorism policy. These biases should be cause for concern, not least when they lead us to adopt policies that are more burdensome on others instead of those that are most effective at preventing further attacks. Not surprisingly, policies which impose burdens on others - and therefore appear less costly - tend to interfere with civil liberties, particularly those of non-citizens. Recent psychological studies offer an unprecedented opportunity to recognize and understand these biases, and to take action to correct them. One process-oriented corrective that I propose here is to conduct systematic human rights impact assessments during the formulation of counterterrorism law and policy. These assessments should lead to measures more protective of both liberty and security.