At the limits of the liberal state: The answers to the terrorist threat

The political violence carried out by transnational clandestine organisations is not new, but after September 11 2001, the political imagination associated with the possible threat it creates has shifted dramatically in the US and has shifted also in the EU but with a different intensity, depending on the past history of violence of each country, their relation with the US and its specific government, on their vision of world order.

The security «question»

One of the effect of the framing of transnational clandestine organisations as a danger for the survival of the state was to develop suspicion towards foreigners or citizen of Muslim origin and the antiterrorist policies had an effect on the previous debate concerning the immigrants’ role in our societies. Do they need to be considered as threat or assets? How to avoid stigmatization and suspicion beyond reason of groups of people bearing symbols of otherness, crossing the borders and looking as potential supporter of these clandestine organisations ? How migrants but also refugees and even tourists can continue their activities and what kind of restrictions, in the name of security, is allowed, if the objective is still to develop and promote freedom, and especially freedom of movement?

The argument of controlling frontiers, of building a fence (either physical or digital), blocking and filtering dangerous individuals, but without a large sorting excluding non-guilty persons has given birth to a fierce debate about homeland security, the nature of collective identity, and politics of order both internally and internationally. The «security» question is embedded into a larger one concerning the relation to identity, order and the political.

How liberalism deals with its enemies?

The technologies of protection and the legitimacy of security purposes have to be assessed in regard to the notions of identity, order, freedom and not only as a technical solution more or less efficient against a new form of threat. The framing of the enemy, especially an unknown one, and a stealthed one, gives manoeuvre to enlist many adversaries and political opponents as potential enemies, and may have a self fulfilling effect. So the politics of protection are profoundly affected by the politics of fear and reassurance developed in political discourses and by the way policing insecurity beyond borders is done. Is war abroad a solution? Are traditional policing and prosecution sufficient? What is the meaning of global, transatlantic and even European police collaboration in regard to national sovereignty and to civil liberties? How liberalism deals with its enemies? Do they have to surrender, to negotiate, to admit inferiority concerning their values and beliefs?

It looks like the professional of politics, beyond their disagreement about the usefulness of war abroad, especially in Iraq, but also in Afghanistan and Somalia, agree on the idea that we need to have more reliable intelligence about the stealth enemy and that it can be developed only by intelligence sharing between the different agencies (police, customs, immigration officers, consulates, judges, police and military intelligence, high tech systems of detection and surveillance through visual and phone taping..) and a better availability of data between the computerised systems of information in order to gather on time the information and to prevent the danger before it occurs. But how is it possible to monitor the future? What kind of profiling, if any, is justified? What form of legitimacy of counter terrorism measures we may find, if we don’t accept the arguments of emergency and of the ineluctability for the worst case scenario to happen? How to avoid the maximum security dream which transforms life into a careful and planned robotic circuit without creativity and risk? What are the possibilities to control the controllers and to trace their actions during and after they act in the name of our security? How is it possible not to reduce their freedom of action in the fight, but nevertheless to control them and to give to presumption of innocence more chance than to presumption of guiltiness and suspicion?

S3, Secret of action, Sovereign decision, Survival in the name of the future are easy to take, but they have also to face the right of defense, the role of judges to look about proportionality and legitimacy, and the judgement of the citizen.

The challenge project

Without precluding today’s discussion I want to emphasise some of the elements of the Challenge integrated programme research. Our starting point is the contention that the liberal and democratic traditions of modern European politics hinge on aspirations for both liberty and security, although the relationship between these two values has had a long and often very troubled history. We have thus sought to understand recent concerns about security among EU citizens while bearing in mind the concern not to undermine civil liberties, human rights and social cohesion.

The metaphor of a balance captures many popular assumptions about the place of legitimate violence in modern political life. It also promotes a profoundly misleading account of the social forces, institutional practices and legal principles at work in contemporary democratic societies, most especially when questions about liberty and security are involved. If difficult decisions are to be made, they need to be understood not in relation to fuzzy and depoliticising metaphors of balance but to hard questions about what it means to make an exception to the normal expectations of liberty,equality, democracy and the rule of law in modern political life.

Then, against the easy assumption of a need to strike a balance, the Challenge project has worked with more technically precise accounts of a politics of the exception. These accounts speak to the intellectual roots of security analyses, grounded in traditions of political realism, to legal traditions concerned with the limits of the rule of law, and to historical accounts of liberal and democratic societies confronted with pressures to become more illiberal and more authoritarian.

Terrorist attacks were not ‘unprecedented events’

The main results achieved during the Challenge project clearly differ from the narratives that have been presented by many politicians, by large sections of the mass media and by some forms of academic research grounded in nationalist accounts of friend-enemy relations. Nevertheless, these results seem to be corroborated by an emerging consensus across a broad spectrum of contemporary scholarship and informed opinion. Two general conclusions seem especially uncontroversial, both of which lead to concerns about premature judgements about the novelty of the present situation.

First: Accounts of the radically new are all too easily transformed into accounts of the radically dangerous. In our view 11 September 2001, 11 March 2004, 07 July 2005 cannot be considered to be ‘unprecedented events’ that radically changed the face of the modern world, even if it was tragic moments. It did not mark the birth of a new age of terrorism, or hyper-terrorism, or mega-terrorism, or some third type of terrorism. To the extent that novelties may be identified, they involve new combinations of traditional forms of action, and not, as so many official accounts have implied, some grand new force combining weapons of mass destruction with fanatical and irrational clandestine organisations.

One of the strongest arguments for traditional claims to a monopoly of violence within a specific territory has been a claim that the only alternative is some kind of apocalyptic nightmare, the loss of all political control under conditions of revolution of the kind threatened by Lenin and the chaotic condition in which much of Europe found itself at the end of the First World War. This is an alternative that has long made the monopolisation of power by the modern state seem more or less reasonable, the obvious ground for the kind of political realism that was largely constructed in the aftermath of revolutionary threats in order to affirm the modern nation state as the natural site of all political possibilities.

It is this kind of alternative that again seems to haunt many political professionals who have come to take the state for granted as the only possible source of contemporary political authority and as the necessary site of all decisions about the legitimacy of violence. It reappears now as fear of an Armageddon created by small groups of fanatics, religiously motivated, and with weapons of mass destruction readily to hand: a combination, perhaps, of the Aum sect in Japan and the organisational resources of al-Qaeda networks.

Whatever the precise explanation for the way so many political professionals have been so quick to over- interpret totalising accounts of a new threat environment from empirical evidence that demands rather more circumspect judgements, it is clear that a fear of the future has become a significant feature of contemporary political life. This fear has especially been played up by some members of the US administration. It has been used to elevate the attacks of 11 September to a threat to the very survival of the US, thereby generating powerful narratives that give legitimacy to claims about an emergency situation, about the need to suspend the conventions of a politics as usual, about the necessity to wage a war, about the need to engage in a new confrontation between friends and enemies – although friends and enemies are not easily mapped onto competing national sovereignties within an international system.

The dangers of rhetorical excess in this context have been widely remarked, but the rhetoric can become extremely effective when claims about threats, dangers and terrors intersect with longstanding claims that the only alternative to the modern security state is some kind of apocalyptic collapse. Many political professionals are susceptible to this way of thinking and are easily swayed by talk of radically new dangers. More sober assessment requires attention to continuities and relatively subtle adjustments and to the playing down of events such as 11 September as a key moment in a narrative of an onrushing apocalypse.

Adhering to older logics of counter-terrorism

Second, just as 11 September does not mark a major break from the old and the entry of the radically novel in relation to forms of terrorism, neither does it mark any such break in the practices that are used to respond to terrorism. The appeal to some declared or undeclared condition of extreme danger is surely one of the most fundamental resources available to all statist governments and has a long history in the practices of both statecraft and constitutional law. The use of derogatory measures in relation to human rights and privacy rights was already well-developed in Algeria towards the end of the 1950s, and has recurred in Brazil, Argentina, Uruguay, Chile and other Latin American states, as well as in liberal states such as Germany (against Baader Meinhof), Italy (against the Red Brigades), Spain (against ETA), France (after 1986) and especially the UK (against the Provisional IRA in Ulster).

All the key debates since 2001, in the EU and the US, whether about reorganising and coordinating intelligence structures, about Homeland Security or about the US Immigration and Naturalization Service and border guards, as well as the priority given to military measures, follow the pathways inscribed by these older logics. More to the point, what was proposed in the immediate aftermath of 11 September was a series of measures that had already been envisaged in practical terms before 2001 but had often been rejected as unacceptable in principle. It is the willingness to accept the previously unacceptable that gives special cause for concern in both US and the EU.

The adherence to older logics partly explains why much current antiterrorist policy is so technologically driven, so preoccupied with the use of data surveillance, biometrics, the transnationalisation of intelligence and police information, and appeals for greater collaboration between the police organisations under the lead of US intelligence services. Policy in the EU has been even less innovative. The EU framework includes a range of measures concerning information exchange, police and judicial cooperation, the security of travel documents, money laundering, the freezing of assets, specific instruments such as the European Arrest Warrant and the EU evidence warrant. Further, it includes the setting or reinforcement of specific institutions such as Eurojust, the new powers given to Europol, the automation and acceleration of procedures, reinforced control over the Internet, enhanced surveillance of mass demonstrations and the launch of routinised discussions between the intelligence services.

None of these measures can usefully be understood as a speedy reaction to 11 September or to subsequent US pressures. They were very largely the outcome of a long trend of proposals that can be traced from the beginning of the Trevi and Schengen groups in the mid-1980s – proposals that were partly resisted at Amsterdam and Tampere but which came to be the dominant trend after Genoa.

So, in keeping with both the value placed on new technologies and a tendency to see some sort of apocalyptic chaos as the only alternative to the monopoly of violence in a specific territory, narratives about security are increasingly articulated in terms of a capacity to control the future. Many old - fashioned worries arise in this context, not least about an over-reliance on worst-case scenarios or hubris, or again, unintended consequences. There is further reason to be concerned about the extent to which claims about security can now be invoked so as to control populations not only in relation to dangers that at least have some concrete and tangible reference but also in relation to speculative, abstract and explicitly metaphysical ideas about futures that can only be imagined – and imagined on the basis of out-of-date ideas about what friends must do to enemies. The so-called ‘doctrines of preventive war’ and proactive policing both express disturbing tendencies in this direction. In addition claims to knowledge advanced by the intelligence and security services are often given privileged status in relation to claims made by other political actors, even if they have lead to shooting of innocents or of suspected people without solid grounds internally and to decision to go to war externally.

The tensions of liberal democracies

These grounds for concern ultimately draw attention to the uneasy status of contemporary forms of democracy. From the clearly defined temporal and spatial remit that the sovereign capacity to declare an exception once had in the modern state, the declaration of exceptions now occurs in some other spatiality and some other temporality. Some analysts go so far as to suggest that the entire world has been internalised, and a capacity to declare exceptions has been generalised.

The implications of this excess can be felt in the tensions of liberal democratic polities that consider themselves to be in a state of permanent war (rather than the permanent state of ‘liberal democratic peace’ so widely celebrated only a decade ago). The generalisation of claims about a state of emergency as the defining moment of political life raises fundamental questions about the basis of legitimate authority, about peoples’ democratic ability to contest the claims of the state and its articulations of singular sovereignty within a specific territory, and indeed about the very possibility of political agency. More than any other sphere of modern political life, security practices work, in part, by seeking to protect themselves from the normal operation of political contestation while at the same time claiming to be able to protect a sphere in which political contestation may be conducted. Consequently, to focus on the implementation of security practices, and specifically on the implementation of anti-terrorist legislation, is to engage with political agency not only in relation to rights, but also in relation to the contestation of the claims about the conditions under which political authority is now considered to be legitimate. Any attempt to remove security practices from political contestation necessarily directs attention to the very possibility as well as the limits of political action, most notably in relation to the judiciary and civil society.

Further links

Liberté et Sécurité en Europe

To reassure and protect: After September 11th

Source : http://www.re-public.gr/en/?p=76