Public policy

In the age of terror, must states break the law in order to defend it?

Rachel WUHRMANN (2016), The London School of Economics and Political Science, Msc in Conflict Studies. 


The 2001 World Trade Center Attacks tragically embodied the birth of a novel form of warfare, symbolizing the beginning of a new era. States were no longer the only ones posing a veritable threat to a nation, for those who destroyed the symbols of the world’s leading nation were merely a small congregation of non-state actors. Not since Pearl Harbor has the United States been directly attacked on its soil. And not since then has the response been as great. Proportionate to the trauma it entailed, both governments in power declared war. President Franklin D. Roosevelt signed his Declaration against the Empire of Japan on December 8th 1941, and on September 20th 2001, George W. Bush announced his decision to destroy the perpetrators of the attacks (The Guardian, 2011). But against whom was he fighting ? The main targets were rapidly identified as ‘Al Qaeda’, a terrorist organization supposedly based primarily in Afghanistan, and the Taliban regime. Asserting his commitment to ‘defend freedom’ (Ibid.), Bush solemnly declared ‘War on Terror’.

The limits of this expression are easily detectable. How can one nation militarily defeat such an abstract entity ? By declaring that this war would not end ‘until every terrorist group of global reach has ben found, stopped and defeated’(Ibid.), President Bush and his administration fell into the mesmerizing trap of asymmetric warfare. As they inevitably realized in the aftermath of the Afghanistan and Iraq War, a state, no matter how powerful, can not impose its values on another nation by force. Discredited on the international scene, it failed to win the hearts and minds of the local population. Instead, terrorism rose as the American troops led their disastrous campaign. Taking advantage of their position as the ‘weak actor’, terrorist organizations were able to gain popular support, facilitated by the shameful conduct of a number of officers, as epitomized in the Abu Ghraib scandal.

Beyond the military intervention, the Bush administration declared a state of emergency, and hid behind legalistic terms in order to justify torture being practiced abroad. Rarely does a state acknowledge its effective law infringement, it rather advocates its right to interpret the law in a wider framework. Is it nevertheless possible for a state to fight terrorism without breaking the law ? What does this breach entail for our own personal freedoms and human rights ? How far can we accept these restrictions ? And by attempting to ‘defend’ a state, aren’t we, on the contrary, destroying its essence and core values ?

We will first explore the humanitarian consequences of such violation, outlining the inevitable counterproductive effects of relying on torture. Because of technical constraints, we will not be able to carry out an in-depth analysis of the privacy dilemma, as epitomized in the Snowden scandal. We will rather focus on the paradox of state defense, exploring how emergency laws threaten our civil liberties more than any potential terrorist attack.

The growing threat of terrorism made the incentive to ‘break the law’ more tempting for nation states. There are two ways for a government to limit a right. It can first be traded off for national security, or redefined in times of emergency (Columbia Law School Blog, 2005). The former method being absolutely forbidden in International Law when it comes to torture, the Bush administration justified its use by rethinking the concept of torture altogether in regards to the ‘Global War on Terror’ it was waging. By stating that the prisoners suspected of terrorism were ‘unlawful enemy combatants who (were) not entitled to the protections that the Third Geneva Convention provides to prisoners of war’ (Presidential documents, 2007), the Commander in Chief of the Armed Force overlooked the Common Article Three, which states that even those who are not considered as prisoners of war are nevertheless subject to minimal protections, one fundamental being the protection against torture (Columbia Law School Blog, 2005). Jeremy Waldron, Professor at Columbia University, and author of Torture and Positive Law, warned us of the dangers of considering torture solely on a technical and legalist basis (Ibid). In doing so, one can difficulty escape the situation in which the reservists and military police no longer consider torture as categorically proscribed and inexorable. This process of trivialization, associated with the dehumanization of its detainees, eventually led to such tragedies as the Abu Ghraib scandal. Both a tragedy in terms of human rights violation and war crimes, it showed the perverse consequences of disregarding international law. The United States’ image was further tarnished as the public opinion shifted, profoundly shocked by these revelations. Far from ‘destroying’ the terrorists responsible for the 9/11 attacks, the United States indirectly helped strengthen their movement.

As the Chair of the International Executive Committee of Amnesty International, Paul Hoffman, argued in an insightful article published in 2002, the necessity of fighting terrorism is indisputable. But it must be done in respect to both humanitarian and international law. The failure to respect those norms, ‘not only undermines our shared values, it undermines the international cooperation and public support so crucial to developing effective antiterrorism efforts’ (Hoffman, 2002: 935). Without entering into the age-old debate of defining terrorism, it is nevertheless interesting to note the limits and restrictions of such a definition. As the famous statement goes, ‘one man’s terrorist is another man’s freedom fighter’, and attempting to manage such a ghostly threat can therefore create novel problems and issues. As Chin Peng, a leading figure of the Malayan resistance to the British in 1949 once stated, ‘When we worked with the British during the Japanese occupation and killed people – essentially in Britain’s interests – we were neither bandits nor terrorists. Indeed, we were applauded, praised and given awards. Thus, you only became a terrorist when you killed against their interests’ (Hughes, 2007: 293). Language thus plays a fundamental role in power politics. Labelling, as Wood once argued, is ‘a way of referring to the process by which policy agendas are established and more particularly the way in which people, conceived as objects of policy are defined in convenient images’ (Wood, 1985: 359). For the purpose of this essay, we will not enter into the controversial debate of defining ‘terrorism’, but rather assume that ‘there is a core meaning (…) at least with respect to attacks on civilians about which there is increasingly very little normative disagreement’ (Hoffman, 2002: 937).

Should the basic rights of a human being nevertheless be refused, solely on the basis that they might be terrorists ? It was recently revealed that most of the Abu Ghraib and Guantanamo detainees ‘had nothing to do with terrorism’ (McCoy, 2006:24). An analysis of the Pentagon indeed came to the conclusion that ‘86 percent (of Guantanamo’s 517 detainees) were arrested not by US forces but by Northern Alliance and Pakistani warlords eager to collect a 5,000 $ bounty for every ‘terrorist’ captured’ (Ibid.). They were neither granted access to a competent trial, nor presumed innocent. In the legal black hole of Guantanamo, the captives were no longer protected by international and humanitarian law. The United States legitimized these abuses by reminding the public of the criminal activities these men were supposedly engaged in. Although the unlawful and immoral nature of such terrorist attacks are undeniable, human rights remain indisputable and inviolable, even if the status of prisoner of war is not clearly recognized. As the Human Rights Watch article on US forces’ abuses emphasizes, ‘abuses by one party to a conflict, no matter how egregious do not justify violations by the other side. This is a fundamental principle of humanitarian law” (Human Rights Watch, 2004: 48).

The trauma caused by World War II and the realization of human’s capacity to exterminate and destroy, prompted the international community to reassert its values within a legal framework. The Universal Declaration of Human Rights was proclaimed on December 10th 1948, and the Geneva Conventions ratified the following year. Even though strongly influenced by Western values, and therefore subject to criticism, these declarations became pillars of humanitarian and international law. As such, it is therefore both a moral and legal imperative for countries to respect these laws, especially if they were at the origins of its creation. The atrocities perpetrated by terrorists should not be an excuse for violations. The Geneva Conventions do not require reciprocity to be applicable (Ibid.: 49) . When the law was established, it was indeed in projection of such a time of emergency, ‘to constrain us in the circumstances where torture would be a temptation, not in peace academia’ (Columbia Law School Blog, 2005). The Bush administration have ‘undermined the legal and military culture by changing the meaning of torture’ (Ibid.). This dangerous method resulted in such human rights violations as Abu Ghraib or Guantanamo.

The other argument most frequently used by those who defend torture is embodied in the metaphor of the ticking bomb. A nuclear device is about to explode, threatening the lives of thousands, and the only chance to save them is to brutally interrogate a small faction of suspects. Before entering into the problem of the accuracy of such assumption, it is first interesting to note that this assertion is corrupt for a number of reasons. It first ‘brings the opponent of torture down to the level of the defenders (…) for one single case’ (Ibid.). It is secondly corrupt factually, for it assumes that torture is not only successful in retrieving accurate information, but also that it does so quickly. As the ancient Roman jurist Ulpian argued more than 1,800 years ago, ‘when tortured the strong will resist and the weak will say anything to end the pain’ (McCoy, 2006: 23). The German resistant Fabian von Schlabrendorff, arrested for being implicated in the July 20th 1944 bomb plot against Hitler, never revealed any important fragments of information, even after four weeks of torture so intense he suffered a heart attack (McCoy, 2006: 23). The argument of the ticking bomb also assumes that somehow we have the people who are trained to do so. It supposes the development of a ‘culture of torture’ (Columbia Law School Blog, 2005), impacting the training discipline of the CIA and FBI. Another critical issue with such argument, is that ‘once we agree to torture the one terrorist with his hypothetical ticking bomb, then we admit a possibility, even an imperative, for torturing hundreds who might have ticking bombs or thousands who just might have some knowledge about those bombs’ (McCoy, 2006: 23). Hence, where do we draw the limit?

Do these ‘alternative set of procedures’ even work ? Alfred McCoy, denouncing the myth of the ticking bomb, argues that torture is both ineffective and counterproductive. Other set of alternatives do exist, such as the ‘empathetic interrogation’. This technique was first used by US Marines during World War II to extract information from Japanese captives on Saipan and Tinian, and ‘has (been) practiced with great success since then’ (Ibid.). Dan Coleman, one of the bureau agents engaged on such case, has been ‘appalled by the CIA’s coercive methods after 9/11’, he instead prones the ‘reliance on due process and empathy’. The conclusion he draws from his years in FBI counterterrorism is that ‘brutalization does not work. And besides, you lose your soul’ (Ibid.).

The question which naturally arises is the following, if torture is proved to be not only immoral and illegal, but also ineffective, then why would any rational leader engage in such measures, knowing its political risks? One answer to this question seems to lie in an agency analysis dating from the Cold War. CIA agents indeed made this observation when faced with a situation of high level of stress, ‘When feelings of insecurity develop within those holding power, they become increasingly suspicious and put great pressures upon the secret police to obtain arrests and confessions’ (Ibid., 24). In sum, ‘the powerful often turn to torture in times of crisis, not because it works but because it salves their fears and insecurities with the psychic balm of empowerment (Ibid.).

The limits and contradictions of torture have both been outlined by academics and counterinsurgency agents. Resolving to such brutal methods is not only dangerous on a political, but also humanitarian level. It is necessary for a nation state to respond to terrorist threats, but this response must be done within the legal and human rights framework, for we otherwise run the risk of entering the fatal spiral of humanitarian disasters. We will now analyze the impact of the national security rhetoric on our basic rights as citizens.

Now in a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedents is pernicious, for if the practice is once established of disregarding the laws for good objects , they will in a little while be disregarded under that pretext for evil purposes. Thus no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it (Ignatieff, 2004: 25).

In his Discourses on Livy, Niccolò Machiavelli warned us of the dangers of suspending our rights in the face of public threat. His visionary insight enclosed the security-privacy dilemma we are sadly facing today. This issue, epitomized in the Snowden affair of 2013, will not be studied in depth throughout this essay, due to technical constraints. We will rather explore the impact of this breach on our civil liberties. What does this law infringement imply for out basic rights as citizens ?

The Government Communications Headquarters (GCHQ) asserted that ‘in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others’ (Lanchester, 2013), it could disregard article 8 of the Human Rights Act, which states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’ (Ibid.). The GCHQ repeatedly affirmed its willingness of operating within the legal framework. As we have nevertheless already explored, the core difficulty rests in that law is ‘so broadly drafted and interpreted that it is almost impossible to break’ (Ibid.). Its high-profile surveillance operation was justified for reasons of ‘national security, economic well-being and serious crime’. But a chilling addition was made to this assertion. The text indeed reads, ‘just three at the moment. No reason why GCHQ’s remit would not be changed in the future but this is what we are allowed to do at the moment’ (Lanchester, 2013). Where does the limit lie ? If such definition of ‘terrorist’ or ‘insurgent’ is so easily broadened, then how can we safeguard such basic liberties as the freedom of speech or expression. How can we protect ourselves from being judged ‘enemies of the nation’ if we inadvertently happen to ‘bring disorder’ or ‘threaten the morals’ of our state? We could easily – and worse yet, very rapidly – fall into the dangerous spiral of authoritarian regimes. It is however fundamental to bare in mind that ‘freedom of expression or speech’ must not be confused with ‘hate speech’, which is absolutely prohibited in such countries as the United Kingdom or France.

In his visionary and captivating Nineteen Eighty-Four, George Orwell depicts a sinister society in which control is pushed beyond measure. The past is destroyed, and the future nonexistent, in accordance to the Party’s maxim, ‘He who controls the past controls the future. He who controls the present controls the past’ (Orwell, 1949: 44). In this dystopia, every individual right is abolished, even the very intimate freedom of thought. Orwell not only denounces loss of privacy due to mass surveillance, but also loss of individuality. Even language is simplified and reduced to its maximum. Such destruction of words corresponds to a ‘more profound destruction of liberty’ (Caunac, 2013), for the control of language also corresponds to the control of one’s thoughts. Orwell’s classic novel illustrates a world in which human rights and civil liberties are nonexistent. Any emotion inherent to our conditions as human beings are forcefully repressed. Love, desire or sympathy become abstract and dangerous notions, that can lead to one’s condemnation. As O’Brien tells Winston Smith, ‘If you want a picture of the future, imagine a boot stamping on a human face – for ever’ (Orwell, 1949: 249).

Even though Nineteen Eighty-Four is often cited in reference to the present threats posed by mass surveillance, we are luckily still far from this situation. We must nevertheless still realize the threats caused by dehumanization and human rights deprivation. We must also take into account the paradox of state defense. In an honest attempt to defend and protect, a nation may on the contrary undermine its essence and core values. Every state indeed runs the risk of undermining its citizens’ rights, for purposes of national security. Freedom of expression is however necessary in order to sustain a healthy democracy. A limit must be drawn between those who pose a veritable threat to the nation, and those who may uncomfortably destabilize a government in power or association, because of their beliefs and ideas. Walter Wolfgang, Vice Chair of the Campaign for Nuclear Disarmament and supporter of the Stop the War Coalition, was thrown out of the annual Labour Party Conference in Brighton in September 2005, after shouting ‘nonsense’ during Jack Straw’s speech. The then-eighty four year old, was later detained under the Terrorist Act, for attempting to re-enter the conference. This event largely shocked the general public, who saw in it the absurdity of using national security as an excuse to deal with controversial issues.

            The real threat to the life of the nation therefore lies in these emergency laws and the paradoxical relationship between security and liberty. By attempting to defend a state, one runs the risk of destroying the fundamental liberties of its citizens. The fundamental importance of protecting the peoples of a nation and defeating terrorism is not put into question. Rather, it is necessary to respect the law, for those who trade liberty for security often get neither. As Paul Hoffman once declared, ‘By challenging the framework of international human rights and humanitarian law, this ‘war (on terror)’ undermines our security more than any terrorist bombing’ (Hoffman, 2006: 933). In times of threat, we must not fall into the trap set forth by our enemies. We must, on the contrary, embrace the principles of international justice and human rights to a greater extend. Or else, not only is it ‘self-defeating in the fight against terrorism, but it also hands those who would engage in attacks such as those of September 11th and March 11th an undeserved victory’ (Ibid., 955). As Dominique de Villepin asserted in his 2003 speech against the Iraq War, ‘in this temple of the United Nations, we are the guardians of an ideal, we are the guardians of a conscience. The heavy responsibility and the immense honor that is ours, must drive us to give priority to peaceful disarmament. (…) Faithful to its beliefs, (France) wants to decisively act with all the members of the international community. It believes in our capacity to build a better world, together’ (De Villepin, 2003). (« Dans ce temple des Nations unies, nous sommes les gardiens d’un idéal, nous sommes les gardiens d’une conscience. La lourde responsabilité et l’immense honneur qui sont les nôtres doivent nous conduire à donner la priorité au désarmement dans la paix. (…) Fidèles à ses valeurs, (la France) veut agir résolument avec tous les membres de la communauté internationale. Il croit en notre capacité à construire ensemble un monde meilleur ».)

The necessity to respond to terrorist attacks is crucial and indisputable. We must nevertheless remember that breaking the law in this process is dangerous both for our human rights and civil liberties. The Abu Ghraib scandal has tragically shown the consequences of trivialization torture and dehumanizing detainees, whilst the Snowden revelation demonstrated the risk of mass surveillance operations. By attempting to defend a nation, one can therefore easily fall into the trap of destroying the essence and core values of a state. It is precisely in times of threat, when fear and hatred are used as weapons, that we must reassert our belief in Justice and Liberty. Those who disregard international law, and who are prepared to use barbaric methods such as targeting civilians, can only be effectively defeated within the legal and humanitarian framework. If not, innocent citizens will rapidly become the indirect victims of such ‘War on Terror’, for both their freedoms and rights will be dangerously restricted.

Laws and humanitarian conventions were customarily established in the aftermath of immense suffering. But in order to counter hostility and horror, we must reaffirm our trust in our institutions and our trust in humanity. It is a necessary moral imperative if we want to enjoy our undeniable rights as human beings. Hannah Arendt once declared that after the discovery of Auschwitz, something in her broke. She could have forgiven the Nazi regime everything, ‘but not this’ (Arendt, 1964). She however also realized that abandoning her ideals meant that such regime would have won until the very end. ‘A venture is only possible when there is trust in mankind. A trust which is hard to formulate. But one which is fundamental. A trust in what is human in all people. Otherwise such a venture is impossible’. May we reflect upon these words.


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