Why and how states legislation and enforce a terrorist identity?
Anti-terrorism legislations, break down of the rule of law and the creation of the ‘other’
Terrorism is a common word heard throughout the 21st century. This one word has caused governments all over the world to take drastic measures to protect themselves from its effects. States use multiple methods including the use of legislations, delegated executive powers and their powerful silence to create a terrorist identity. Often, this terrorist identity is created when society notices the types of people the legislations detrimentally impact the most. These legislations tend to mess with the principles of the rule of law as they restrain fundamental freedoms such as the right to a fair trial, human dignity, freedom from detention, search, seizure and the protection of privacy.
This essay will focus on how and why states legislate and enforce a terrorist identity. This will include taking a look at how states justify the passing of these draconian legislations, which clearly violate some of the most treasured fundamental human (and legal) rights. Furthermore, the essay will also look at specific anti-terrorism legislations issued by the United States and the United Kingdom as a response to the 11 September 2001 (9/11) attack. The primary focus will be on how these legislations weaken the rule of law and sometimes completely usurp it. With a critical approach, problems surrounding the breakdown of the rule of law will be discussed as well as the consequences for the wider society. At a glance, these consequences include loss of trust in the law, the creation of the other and the strengthening of arbitrary state power.
Reasons for legislating a terrorist identity
A terrorist identity is automatically created when it becomes clear who it is the legislations impact the most. In the 21st century, the anti-terrorist legislations tend to single out Arabs and Muslims the most, hence creating the perception that most people which look or sound Arab or Muslim are more likely to be a terrorist than any other group. Prior to 9/11, the Russians were profiled as the likely terrorists. Although these legislations are hugely impactful (and perhaps sometimes for the wrong reasons), there are some possible justifications for the state’s actions. The primary reason being the safety of the people.
The security of the public is a concept which elusively avoids the balancing exercise against fundamental legal rights (Jakab, 2011). There is an engraved idea in everyone’s mind that emergency situations require emergency responses, which in turn do not need to adhere to the normal standards of practice and expectations. The governments get the people to think there is a bigger problem. The easiest way to do this is to stereotype the problem to an identifiable group which already stands out in society, i.e. Muslims or Russians.
Other justifications for these draconian legislations include the argument that these measures will prevent atrocities from occurring in the future. Hence, there is a widespread acceptability of the suspected terrorist in the law. It is this creation of fear which allows society to turn a blind eye towards measures that go against the values of every democratic government. Cicero says that the ‘…safety of the people is the supreme law’ (Bingham, 2010, p. 136). The state (in front of the public) have constantly reiterated the core message behind Cicero’s statement.
Anti-terrorism legislations in the United States and the United Kingdom
Following the attacks on 9/11, Lord Bingham notes that both the US and the UK responded to it by passing legislations (Bingham, 2010). The US passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Interpret and Obstruct Terrorism Act (USA PATRIOT Act). This act was rushed through both houses with minimal debate or public hearing (Bingham, 2010). It delegated extensive powers to the executive government to take care of a very broad description of the term terrorist (Bingham, 2010). It extensively authorised the executive to “use all necessary and appropriate force” against individuals or organizations that may have had a hand in 9/11, in order to “prevent any future acts” (Bingham, 2010, p.138). It is clear from the broad wording that this legislation creates the identity of a suspected terrorist. It allows the use of force on people that have not necessarily done anything and most times, the only explanation for their degrading treatment is because they fit the stereotyped image of a terrorist.
These are immense powers to confer to any government, as this act gives the President to use any methods (such as indefinite detention without guarantee of a trial, renditions, home searches and degrading treatment) or any other force to deal with potential terrorists (Bingham, 2010). Furthermore, anti-terrorism legislations can also permit the use of coercion (torture) if it aids in the finding of a terrorist or some useful information (i.e. US Military Commission Act) (Bingham, 2010). These broad powers are which enable the break down of the rule of law, for there is no evidence of these legislations attempting to protect the individuals right to be free from torture, detention or degrading treatment. However, for the sake of security, the rule of law is being shunned.
State justifications for the enforcement of drastic anti-terrorism legislations:
These legislations are a way for the state to seem in control of an uncontrollable situation. The 21st century is obsessed with safety, as there is the fear they could be the next victim of an attack, thus any government that appears to be failing at protecting its subjects faces the risk of being voted out of office. The state uses this fear to tactfully get away with passing such legislations. A critical approach would suggest there is essentially a power struggle between the state and the terrorists. The state asserts their power through the issuing of draconian legislations whereas the terrorists do it through their terroristic acts. Both, however, are trying to advance their political agenda in order to gain more power.
The use of language in this era of terrorism is often overlooked. However, it plays a strong role in getting the public to not only accept these legislations but to appreciate them as well. For example the US after 9/11, declared a ‘War on Terrorism’. The word ‘war’ has a powerful impact, for many believe that law in times of war is different to that of peace (Henkin, 2004). The use of words like this plays on the fear which has already been deeply rooted in the minds of the paranoid public.
States also put forth the idea that law-abiding individuals would have nothing to fear about with regards to these legislations. Emphasis is placed on the fact that only the terrorist would have something to fear about (Bingham, 2010). This makes it easier for society to accept the extreme measures being taken to create the suspect community.
The suspect community
The target of these anti-terrorism legislations has created a suspect community. This community is the product of the ‘imagined fears of its non-members’ (Breen-Smyth, 2014, p.230). A member of the suspect community is one that is an exception to the normal standards of the law. They (say for example Muslims) are the subject of unusual security practices and are denied to assert their legal rights (Breen-Smyth, 2014). This external exhibition of being subjected to such power creates even more fear in the minds of the public, strengthening the impact of the terrorist suspect whilst making it acceptable for the state to increase its attention on problematic individuals. Members of the suspect community may be targeted due to their gender, race, accent, religion or appearance, and hence are often assumed to be associated with the terrorist group (Breen-Smyth, 2014).
The rule of law
For the purposes of this essay, it is vital to understand what the average informed member of society would understand the rule of law to be. The idea behind the rule is that everyone should be treated equally before the law and that everyone has the right to settle their conflicts before an impartial court (Choi, 2010). The rule of law is essentially a reference to freedoms everyone should enjoy, these freedoms include the right to a fair hearing, privacy, protection against search, seizure, detainment and torture. The rule of law also endeavours to prevent and protect the public from the arbitrary use of power (Jakab, 2011). These legal promises are what convinces the public to give their consent to be governed by the law. In the era of terrorism, the issue becomes one of what we want to protect, ‘our lives or our way of living?’ (Jakab, 2011, p.65).
The consequences of these legislations on the broader community – weakening of the rule of law.
Anti-terrorism legislations tend to have the most detrimental effect on the rule of law. The USA PATRIOT Act, for example, violates the fourth amendment of the constitution (which promises protection against search and seizure) Furthermore, it usurps the rule of law in the sense that the right to a fair hearing is compromised. This act authorises the use of classified information to take certain actions, whereas in the UK some administrations have been delegated the power to depend on undisclosed information for the purposes of detaining or placing someone in detention (Bingham, 2010). Relying on undisclosed information means one is not allowed the chance to hear the case made against them. Consequently, there is no chance of making a case for yourself or challenging the decision made. This defeats the whole purpose of the rule of law, which advocates for dispute resolution through an impartial and fair procedure. Quite obviously this notion of concealing information and relying on it is very destructive to our fundamental human rights. A broader consequence of this is that “democracy dies behind closed doors” (Bingham, 2010, p. 151).
Additionally, legislations such as part 4 of the Anti-Terrorism, Crime and Security Act aids in the creation of a terrorist identity. Part 4 permits the unspecified detention without trial of foreigners who have been suspected to have involvement in terrorist activities, however, this does not apply to UK citizens (Bingham, 2010). This legislation identifies a terrorist to most likely be foreigners, creating a category of groups to target for racial profiling. This creates a culture of mistrust, hatred and fear.
As a result of these acts, increasingly Muslims are the targets for extensive searches at airports, banks or other public places. Although it is confidently asserted that everyone is subject to these laws, Arabs and Muslims are usually targetted due to the stereotype of Islam being associated with terrorism (Pitt, 2011). This can result in dehumanization which consequently alienates a group of people. Following this, the stereotyped group may adopt the perception that the state is the biggest threat to public security (as the break down of the rule of law means the break down of individual security), not terrorism (Breen-Smyth, 2004).
The rule of law is weakened through the practices of renditions (used mostly by the US), this leads to home searches without warrants, indefinite detainment and the use of inhumane methods to extract information (Bingham, 2010). Detaining without a fair hearing has long been considered a weapon of tyranny. With the break down of the rule of law, the state gets a worrisome amount of power. With this power, terrorist identities are further created. For example, airport staff have the power to remove people from aircrafts if they look Arab or Muslim (suggesting they are more likely to be terrorists) (Bahdi, 2003). It is unfair because a person suspected of being a terrorist has to prove their innocence because their only crime is that they were presumed to be possibly guilty.
Holistically, for the broader society, the break down of the rule of law means there is a divide in society. These laws which put the spotlight on certain groups aids in the creation of the other (Bahdi, 2003). George Bush claimed, “You are either with us, or you are with the enemy” (Breen-Smyth, 2014, p.236). This creates a clear divide between the average citizen and the misfits in society, who are held to a different standard of legal expectations. There is the norm (most likely people that are not affected by these legislations) and the other. In society there must be role sets, thus if there is terrorism then there must be terrorists, thus the state manages to create a group of potential terrorists to complete the societal role set (Arena & Arrigo, 2006).
Interestingly, the state can also use its silence as a way of enforcing a terrorist identity. For example, public servants such as the police perform certain practices which form racial profiling, furthermore, these profiling methods are inadequately regulated by the law (Ojanen, 2010). This is dangerous because usually, the lack of regulation on these methods means there is a higher chance of the convention being against fundamental human rights (Ojanen, 2010).
Racial profiling has been claimed to be ineffective for it is disproportionate to the actual threat (Ojanen, 2010). From a sociological conflict perspective, this practice seems like the competition for power. Trying to assert to the terrorists that the state has all the power because they are skilfully taking bigger and more extreme steps to show it, as mentioned above, states can resort to violence just like the terrorists to achieve their political means.
Building on the issue of alienation and dehumanization, the very obvious degrading treatment of a stereotyped group can be very dangerous for society as a whole. Profiling through legislations can damage individual lives through the loss of reputation, jobs as well as damage to physical and mental health. Youth who identify as belonging to that country can feel deeply disturbed at being stereotyped as an enemy of the state. Being the exception to the normal standards of law creates an angry group of misfits cannot find a way to vocalise their frustration so that people listen. This is because the normal procedures of fair hearing do not apply to them. Furthermore, a person comes to learn who they are by their social interactions, thus such profiling may lead to the promotion of terrorism by certain individuals because they respond to conflict with the way society expects them to (Arena & Arrigo, 2006).
Interestingly enough, there is no solid evidence which suggests ethnic profiling has ever been successful in figuring out who the terrorists are. Rather, its effects are so adverse that profiling people to be terrorists should be ‘constituted as unlawful discrimination’ (Ojanen, 2010, p. 309). This so-called predictive terrorist profiling mechanism is strictly against the principle of being assumed innocent until proven guilty. In the present day, the governments have created so much fear that a majority of the public would agree that it is not worth the risk, giving the stereotyped group of people associated with terrorism the benefit of the doubt. This differential treatment can be justified as the inevitable price to pay for state security. Thus it becomes easy to accept risk management legislations.
There is something seriously wrong with this mentality as the state has been given allowed to use outrageously drastic measures to aid their assumptions of people they stereotyped through legislations. The issue becomes where you would draw the line? How much power is too much power? If non-adherence to the rule of law is constantly being justified and accepted in society, the more dangerous it becomes for an individual, as the principles which reigned in the powers of the state are constantly being usurped. The individual’s rights and liberties are being undermined. The potential for the abuse of power skyrockets and there is very little anyone can do to stop such things. Profiling should be strictly based on individual conduct rather than religion or ethnicity (Ojanen, 2010).
Long-term problems as a result of the break down of the rule of law
People in society obey the law because they hold the belief that they can trust the institution which creates it (Pitt, 2011). By breaking restricting liberties promised under the rule of law, the executive ends up with far too much power on its hands. So much so that normal checks and balance procedures are overlooked (i.e. the USA PATRIOT Act which sped through both house readings) (Bingham, 2010). This has a detrimental effect in the sense that people begin to lose their trust in the law, as it is quite clearly not treating everyone equally. It is not protecting everyone. The legal system can only work if members of society give their consent to obey it because in theory it is supposed to treat us the same.
This weakening of the rule of law is a sort of lawlessness which puts far too much faith in the state. There is the high risk of being exposed to the use of arbitrary power and the abuse of emergency powers. There should be a movement to promote the adherence to the rule of law, as the rule of law ensures that citizens have a predictable and solid dispute resolution system which can be used to deal with their problems. This way there would be no need to resort to violence as a way of dealing with things.
The state creates a terrorist identity through the passing of anti-terrorism legislations. The identity is created when a group of people are identifiably more affected by these legislations than others. These legislations tend to seriously weaken the rule of law and its fundamental principles such as fair hearing, protection against torture, detainment, detention and privacy. Although these legislations claim to apply to every individual, they racially profile a certain group. This creates the notion of the other in society. States justify their actions under the pretence of doing it for state security, however, because of the increasing pressure to protect the public, governments find a scapegoat (a racially profiled group) and deal with them to show they are in control of an uncontrollable situation. This method of creating and enforcing terrorist identities will perhaps prove to be insufficient in the future, as its shaking the foundations of a predictable dispute resolution system. Faith in the law is being lifted and people are beginning to take matters into their own hands.