British Journal of Criminology Advance Access published online on June 3, 2009
British Journal of Criminology, doi:10.1093/bjc/azp034
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The British Journal of Criminology 0:azp034 (2009)
© The Author 2009. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org
JUSTICE IN A TIME OF TERROR
* University of Central Lancashire, Centre for Criminology and Criminal Justice Studies, Lancashire Law School, Preston PR1 2HE, UK; bahudson{at}uclan.ac.uk.
The war on terror has seen the occupation of Iraq and Afghanistan; the use of torture on detainees in Guantanamo Bay; extension of periods of detention without trial, and increased levels of surveillance and control in the United Kingdom and the United States. Although being fought in the name of justice and democracy, the war on terror seems to have brought about curbs on freedom to citizens of the Western democracies and brutality rather than justice to those who are designated enemies and suspects in the war. This article looks at aspects of the war on terror from the perspective of a concern to defend the ideal of justice. Under headings of justice and legality, the lesser evil, the threat to liberal values, and justice and the other, war and occupation, torture, curtailment of civil liberties and the extent to which we each have a responsibility to protect the rights of those who are not our fellow citizens and who do not appear to share our values and our commitments to rights and freedoms are discussed. Recent writings by Michael Walzer on just and unjust wars, Michael Ignatieff on the use of the lesser evil, Jacques Derrida on the rights of the stranger to hospitality and Drucilla Cornell on the need to defend our ideals at the time when we are most likely to forsake them are drawn upon to help examine the fate of and the prospects for justice in a time of terror.
Key Words: legality • justice • torture • ‘lesser evil’ • democratic values • ‘just war’
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Introduction |
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 Top Introduction Justice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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Simply put, we need to re-examine our ideals precisely at a time when we are most likely to forsake them in an effort to protect ourselves against further acts of terrorism. (Cornell 2004: viii)Drucilla Cornell calls for the defence of ideals in this time of heightened concern with the threat of terrorism and, in this article, I want to look at prospects for defending the ideal of justice. While it is an old aphorism that truth is the first casualty of war, justice has taken some heavy blows in this particular war, the war on terror. Fighting in the name of freedom and justice, the United States and the United Kingdom and, to a lesser extent, the other Western democracies are suspending civil liberties and due process rights of their own citizens, and treating captives and suspects from the nations they have invaded with barbarity. The strategies of the war on terror challenge the universality of concepts of rights and dignity; the ‘human’ is taken out of ‘human rights’, displacing the understanding of human rights as the inalienable possession of all humans wherever they may be on the Earth, in favour of the idea that rights are only honoured in the West, and therefore the rights of citizens of the West are the only rights that matter (Gearty 2006).
‘Justice’ is notoriously difficult to define. It is, as Derrida (1990) remarked, far easier to recognize ‘injustice’ than to explain ‘justice’. Injustice has recognizable forms: oppression, violence, cultural dominance, inequality, lack of recognition (Young 1990). Justice is a political concept; it is concerned with balancing competing claims, with dealing fairly with all parties and, although it connects with law and with morality, justice is not reducible to either. Doing justice means giving what is due, whether in the sphere of criminal justice, distributive justice or social justice. While it may be hard to define, justice is, for Derrida, the one non-deconstructable, the idea whose meaning can never be fully captured; it is an aspiration, a necessary ideal, a horizon towards which the best impulses of human civilization are directed (Derrida 1990).
The title of this paper reflects the title of Philosophy in a Time of Terror (Borradori 2003), a volume that contains interviews with Jurgen Habermas and Jacques Derrida, with commentaries by Giovanna Borradori. Habermas and Derrida were both—separately—in New York soon after the terrorist attacks on 11 September 2001, and the interviews capture their reflections on these events. A time of terror, for them as for other writers, is not just a time when terrorist acts occur, but also a time when ‘terror’ becomes an imaginary of extraordinary resonance, which can bring about, among other effects, responses by governments of democracies, supported by large numbers of the population, which are contrary to their liberal democratic traditions and values.
This article reflects on some of the departures from established understandings and procedures of justice, and seeks to defend the ideal of justice. The discussion will be built around four themes: justice and legality; the lesser evil; the threat to liberal values; justice and the other. As well as criminological writing on these themes, the discussion will draw on relevant work arising in parallel fields, mainly law, politics and philosophy. The themes are, of course, overlapping and connected, and issues such as torture, the suspension of civil rights, detention and the war on terror itself involve all four of them, but, nonetheless, identifying them as distinct themes will, it is to be hoped, give some structure to what follows.
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Justice and Legality |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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Arguments about justice are often arguments about legality, and although justice and law are not exactly the same, whether the war on terror is ‘legal’ or not is a good starting point. The invasion and occupation of Iraq and Afghanistan, the detention of prisoners at Guantanamo Bay, the permissible period for detention of suspects before charge or trial and the use of torture and other inhumane and degrading treatment in times of terror are topics that have been argued about in terms of their legality or otherwise.
Many of the arguments about legality in the time of terror turn on the relationship between national law and international law, particularly on the scope of nation-states to interpret as they see fit or to disregard international laws and international conventions. The Geneva Conventions on the treatment of prisoners, the requirement for military action by one state against another to be authorized by the Security Council of the United Nations, the range of techniques that are proscribed under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the meaning of the right to freedom from deprivation of liberty other than by a due process decision of a court of law are subject to different interpretation and different levels of compliance. While most nations claim to uphold these international statutes and conventions, it is not the case that there is a binding hierarchy of law that places international law above domestic law, even on these very basic questions:
International law, or some part thereof, is sometimes imagined to represent a ‘higher law’ that sets the limits on domestic legal authority. This is untrue in general, and misleading even with respect to those international legal standards that can plausibly be characterized as higher-order norms within the international system. (Roth 2008: 220)Many European nations—France, for example—accuse Britain and the United States of going to war in Iraq illegally, because they did not secure a second resolution from the Security Council when they decided that the weapons inspections had failed and military action was therefore warranted. For Bush and Blair, their claims to legality rested not on demonstrating that they had followed the requirement, but that the circumstances were such that new authorization by the Security Council was not necessary: Saddam's alleged failure to comply with the demands of the weapons inspection meant that the previous resolution justified the use of military force. They were not disputing the rule, but the requirements of the rule on this occasion as interpreted by their own legal advisors. While Bush and Blair managed to obtain opinions from their lawyers that the Iraq war was legal, most commentators concluded that it was illegal, and that the President and Prime Minister were flouting international law (Robertson 2006; Sands 2006).
Just as Bush and Blair argued that a further Security Council resolution was not necessary, Bush also used an applicability argument to justify disregard of Geneva Convention rules for the treatment of prisoners of war at Guantanamo Bay: the detainees at Guantanamo were not prisoners of war. Military rules did not apply, it was argued by the legal advisors to President Bush and Vice-President Cheney, because the detainees were not citizens of a state with which the United States was at war. Furthermore, because they were not citizens of the United States or detained in the United States or any of its territories, they were not within the jurisdiction of America's civil law.
Guantanamo Bay was created as a ‘legal black hole’ (Otty 2008; Sands 2006 inter alia). The detainees were exceptions to the conventions on prisoners of war, and the place of detention was an exception to the reach of American law. The capacity to make an exception and to identify an enemy has been described as among the strongest marks of sovereignty; designation of a condition as exceptional and an enemy as uniquely dangerous was said by the German Carl Schmitt to justify the exercise of sovereignty through suspension of normal rule of law (Schmitt 1996). Schmitt's anti-liberal arguments, according to Cornell, with his notion of politics depending on the constructs of exception and the enemy, yield the closest explanation of Bush's political rhetoric (Cornell 2004: 14).
The UK government has followed similar arguments about the threat posed by Islamic terrorists being ‘exceptional’ and ‘unprecedented’ when seeking to extend detention without charge or trial for terrorism suspects. As well as 9/11 and the general threat of terrorism, the London transport killings of 7 July 2005 and the unsuccessful attempts two weeks later also called forth the ideas of exception and the threat posed by an enemy. The Labour Government's position was not to make a general extension to the permissible period of detention for uncharged suspects, but to urge powers for use in extreme and exceptional circumstances. The situation was exceptional rather than normal, so, as Blair famously declared, ‘the normal rules do not apply’.
Both the American justification of ‘intensive interrogation methods’, detention for several years without trials and military tribunals rather than proper courts for the detainees of Guantanamo, and the UK Government's proposing extensions for pre-charge detention of terrorist suspects use the arguments of exceptionalism. Blair and Bush, Smith and Rumsfeld, did not argue that torture is acceptable, that 92 or 48 days’ detention without charge is reasonable, but that we face exceptional threats and so need exceptional measures. They did not seek to proceed without law, but cloaked themselves in either changes to law or the assurance of their legal advisors that what they were doing is allowable under present law.
Phillipe Sands, QC, who has represented detainees at Guantanamo Bay and at Belmarsh, has demonstrated powerfully how law has been used and abused in the war on terror. In Lawless World (Sands 2006), he shows how Bush and Blair have flouted international laws and international rules on the conduct of war, by using arguments of exceptionalism and by procuring legal advice that takes as its task the justification of acts to which the President and Prime Minister are committed; legal advisors can always be found who do not remotely appear to conceive of their task as ‘speaking truth to power’. In Torture Team (2008), Sands details the sequence of events through which a memorandum signed on Tuesday 2 December 2002 by Secretary of Defense Donald Rumsfeld, and drafted by his legal counsel, William J. Haynes, justified the use of techniques of interrogation that would formerly be thought to be unacceptable. The most severe of the techniques approved in the memorandum were proscribed under the US Army Manual's instructions on interrogation, and they violated Art. 3 of the Geneva Conventions.
In a critique of the first edition of Lawless World, journalist David Aaronovitch argued that Sands was asking the wrong question about the invasion of Iraq. The question should not be ‘was it legal?’, but ‘was it good?’. In the later edition (Sands 2006: 280–1), Sands replies that although what is legally correct might not be the same as what is morally good, nonetheless, without adherence to legal rules, the world is a more dangerous place. Divisions among the Western nations about the legality of the war, and loss of sympathy and moral respect for the United States and United Kingdom, have made the task of rebuilding Iraq and of isolating terrorists and their sponsors much more difficult, he argues. Although he defends the value of a system of international law and adherence to conventions and treaties, Sands still allows that legality does not equate to ‘goodness’.
The difference between arguments about legality and arguments about justice are clear if one looks at the debates about just war theory. This theory proposes that, sometimes, war is justified morally as well as legally. The most noted contemporary proponent of just war theory is Michael Walzer (1977), for whom the theory is an argument about the moral standing of war as a human activity. In his most recent review of the theory, he explains that just, in this context, means:
... justifiable, defensible, even morally necessary (given the alternatives)—and that is all it means. All of us who argue about the rights and wrongs of war agree that justice in the strong sense, the sense that it has in domestic society and everyday life, is lost as soon as the fighting begins. War is a zone of radical coercion, in which justice is always under a cloud. Still, sometimes we are right to enter the zone .... There are acts of aggression, and acts of cruelty that we ought to resist, by force if necessary. (Walzer 2004: x–xi)
In the later edition, Walzer defends the theory of just war against some important critiques of the earlier formulation. Against the criticism that the notion of just war makes intervention easier to defend and therefore to undertake, he cites the example of the genocidal killings in Rwanda, wishing that military intervention there in 1994 had indeed been easier to contemplate. Against the criticism that just war theory concentrates on immediate issues and ignores bigger questions such as the legacy of imperialism and the global struggle for power and for resources such as oil and water, Walzer argues that only an idea of just and unjust wars makes it possible to criticize and oppose imperialistic wars, making it possible to state with certainty and clarity that ‘Aggressive wars, wars of conquest, wars to extend spheres of influence and establish satellite states, wars for economic aggrandizement—all these are unjust wars’ (Walzer 2004: xi).
Justice in war, he explains, involves just causes in going to war, just means in the conduct of war and he says that what was missing from the earlier version of the theory was consideration of justice in occupation and in the ending of war. The invasion and occupation of Iraq have made this last issue of pressing importance. Just causes of war are, most importantly, prevention of suffering—so, for most people, the Second World War was justified once the horrors of the Nazi regime were known. In contemporary times, interventions in Bosnia and the failure to intervene in Rwanda, Dafur and (at the time of writing this article) the Democratic Republic of Congo point up the relevance of the idea of just wars.
Walzer judges the invasion of Afghanistan to be just, and the invasion of Iraq to be unjust. This is because the Taliban in power in Afghanistan were, he argues, clear sponsors and protectors of al-Qaeda, whereas there was no demonstrable link to international terrorism in Iraq prior to the invasion. The justice of intervention in Afghanistan is the prevention of future attacks; ‘police action’ in bringing terrorists or other criminals to justice does not justify going to war (Walzer 2004: 137). Similarly, Richard Falk (2003) accepts the war on Afghanistan as a just war because of its association with what he calls megaterrorism, but, as a long-standing anti-militarist, he is careful to define megaterrorism so narrowly as to exclude its application to liberation or single-issue terrorist groups.
Prevention of cruelty within a state as a justification of war raises issues of justice in the conduct of war. Genocide, ethnic cleansing, systematic rape and other horrors that may make military intervention morally justifiable and perhaps even morally necessary take place on the ground, but air strikes are likely to cause death and injury among the very persons the intervention is undertaken to protect. Walzer argues that the risks to the vulnerable civilian population should be reduced as far as possible and that warfare techniques should be such as to get the military interveners as close to the targeted enemy as possible, so as to be sure that it is only they who are being aimed at and that the operations actually are hitting the targets and not the innocents. He concedes that this increases the risks to the military personnel involved in the intervention, but says that this risk has to be borne if the conduct of the war is to be just.
When he considers the question of occupation and closure, Walzer suggests that principles of justice include self-determination, civil rights and the idea of a popular good. Minorities must be protected against persecution, neighbouring states and regions protected against aggression, and the poorest of people must be protected against destitution and starvation. Just wars cannot end with new forms of persecution replacing those the military force was used to defeat or with people without food, medicines or stable shelter, in hiding or in camps. He also says succinctly that ‘A just occupation costs money, it doesn't make money’ (Walzer 2004: 166). As Whyte (2007) has demonstrated powerfully, this certainly is not the case in Iraq.
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The Lesser Evil |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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The invasions of Iraq and Afghanistan, the extension of periods of detention without trial and the use of torture are often debated in the framework of the ‘lesser evil’: is it ever, and, if so, when and to what extent, justifiable to use a lesser evil to combat a greater evil? Cornell argues that just war theory is too easily manipulated to allow for military action that is not morally justified and proposes that the ideal to be pursued should be that of perpetual peace (Cornell 2004: 7). She does, not, however, take this to mean that what she calls ‘counter-violence’ is never legitimate; rather, she advocates the idea of peace—non-violence—as the normative horizon to be kept within the moral gaze and argues that such an aspiration would make the use of force much more limited.
Cornell's argument has much in common with that of Michael Ignatieff, who, in The Lesser Evil (2004), defends the use, in an age of terror, of what would, in normal circumstances, be unacceptable methods to defend against the greater evil of ruthless international terrorism. The difference between his approach and that of Blair/Bush and those of their advisors, who assured them of the legality of their actions, is that Ignatieff says that counter-violence and other anti-democratic methods should be used with bad conscience: we should always acknowledge that the actions and techniques being used on the grounds of self-protection in exceptional circumstances may be necessary and therefore justifiable, but they are evils nonetheless.
Ignatieff acknowledges that torture is the most difficult case for his argument for justified recourse to the lesser evil. There is, he says, an inescapable conflict between a prohibition erected in the name of human dignity and the avoidance of cruelty, and a utilitarian case grounded on the imperative of the state to protect innocent lives. Ignatieff imagines that there will be disagreement among people of conscience as to whether torture might be permissible in exceptional circumstances but there will be agreement that it can never be a general practice.
One tactic for making torture permissible in a wider range of circumstances than might otherwise seem acceptable is to redraw the boundary between what is ‘aggressive’ or ‘intensive’ interrogation and what is torture. The Haynes memorandum to Donald Rumsfeld listed three categories of techniques for use with uncooperative detainees. Category I techniques included shouting and giving deceptive information. If the detainee remained uncooperative, the interrogator could use Category II techniques, aimed at humiliation and sensory deprivation. These techniques included: stress positions for up to four hours; hooding during transportation; twenty-hour interrogations; removal of religious and all other comfort items; removal of clothing; forced grooming, such as shaving of facial hair. Category II techniques, which needed permission from further up the military chain of command, also included the use of individual phobias, like fear of dogs, to induce stress. Category III methods were designed for the small percentage of unusually uncooperative and resistant detainees. There were four Category III techniques: mild physical contact, such as grabbing and poking; use of scenarios to make the detainee think death or torture was imminent; exposure to cold weather or water; and use of a wet towel and dripping water to induce the sensation of drowning (Sands 2008: 5–6). This last technique has come to be known as ‘water-boarding’ and is widely acknowledged to be torture; other Category III techniques would be considered as torture by many people, and certainly are within the ‘impermissible’ range according to Ignatieff.
Another way in which the line between ‘interrogation’ and ‘torture’ was redrawn was by the memorandum of August 2002, signed by Assistant Attorney General Jay S. Bybee. This memorandum concluded that infliction of pain only rises to the level of torture ‘if the level of pain is as severe as that accompanying death, organ failure or serious impairment of body functions’; that infliction of psychological pain only rises to the level of torture if the interrogator intended to cause lasting psychological trauma; that it would be unconstitutional to apply anti-torture laws to interrogations authorized by the President in the war on terror; and that ‘under the current circumstances, necessity or self-defense may justify interrogation methods that might violate’ the criminal prohibition on torture (‘Bybee Memorandum’ 2002, quoted by Luban 2005: 1435). Although the incidences of torture and humiliation at Abu Ghraib (hooding, use of dogs, sexual humiliation and other degradations) were said to be shocking and the result of a small number of ‘bad apple’ personnel when first revealed, they are the same techniques endorsed by Rumsfeld when he undersigned the Haynes memorandum.
Sands (2008: 3) charges that not only does Rumsfeld's and Bush's acceptance of aggressive interrogation methods violate international conventions, but that it also casts aside the instruction of President Lincoln in 1863 that ‘military necessity does not admit of cruelty’. In an incisive article, David Luban (2005) records the change of public mood towards torture in the aftermath of 9/11. Luban argues that acceptance of torture in the context of the war on terror does not represent renunciation of the principle that cruelty must be avoided, but demonstrates that, in liberal democracies, the ideology of torture has changed from exercising power through infliction of cruelty to the ‘lesser evil’, the use of torture to prevent greater harms. Luban quotes Foucault's (1977) analysis of the modernist move away from suffering as a public spectacle as exemplified by the torture and execution of Damiens the regicide. Torture is an intimate exercise of pain—it is inflicted one on one—which terrorizes and humiliates the victim; torture robs its victim of the dignity and autonomy that are the essence of the liberal ideal of the human. To torture in order to cause pain, in order to strip the tortured of humanity, in order to exercise tyrannical power over the captive is inimical to liberalism's idea of itself. Luban argues that only the idea of the reluctant use of torture in order to prevent further harm to innocent victims is compatible with liberal consciousness. If torture is to be resorted to, then it must be used only in the most exceptional of circumstances and it must be used without pleasure and triumphalism.
The ‘ticking bomb’ scenario is the epitome of the permissible use of torture according to the lesser evil ideology. If a captive is thought to have information about an imminent terrorist attack that may result in multiple deaths and injury, then, the argument is, the absolute ban on torture must give way to the duty to prevent further injury, especially if the casualties may be many and are likely to be innocent civilians (Hudson 2003: 216–17; Harel and Sharon 2008). The power of the ticking time bomb scenario is that it challenges liberals on their own ground: do they not say that prevention of cruelty is the most important value? Can there be anything more cruel than to refuse to do everything possible to avoid death and mutilation?
Luban argues that the ticking time bomb scenario ‘cheats’ by the certainty of its suppositions: the bomb is there, ticking away; the officials know they have the person who planted it or who knows exactly where it is planted and when it is set to detonate. But these certainties are seldom met in reality, he says. There may be a bomb or there may not; the person they have captured may know about it, but may not. The scenario raises difficult issues of judgment. For example, if the captive does not talk, should the torture be made more severe, or should it be assumed that the victim does not know about it, or that there is no ticking bomb? If there are a group of captives and one or some of them might know something, should they all be tortured, even with the risk that only one or only a few of them might know and so some are being tortured who have no knowledge? How many lives must potentially be saved to justify the torture of one captive?
Not only are the conditions of the hypothetical ticking bomb scenario seldom met in reality, but the torture may not in fact be because of the ticking bomb at all. The case that is analysed by Sands in Torture Team (2008) is the ‘aggressive interrogation’ of Guantanamo Detainee 063, who was captured in Afghanistan in November 2001. From December 2002, the techniques recommended by Haynes and approved by Rumsfeld were used on detainee 063, Mohammed al-Qahtani, who was at various times said to be the twentieth hijacker on 11 September, and/or high in the al-Qaeda chain of command. The interrogators were, Sands reports, under pressure to make al-Qahtani give up the information he had, but the use of aggressive techniques was not a ticking bomb situation. He had been in detention for almost a year at the time of the intensification of his interrogation; he had been separated from other detainees, so would have no current information on planned terrorist actions, or on the whereabouts of Osama bin Laden. Al-Qahtani was said by Temple, the intelligence officer who was in charge of the interrogations, to have yielded information that was ‘of interest’. In Temple's judgment, ‘Did it help us catch Osama bin Laden? No’ (Sands 2008: 181). Nor did it defuse a ticking bomb.
Luban argues that the ticking bomb has become the start and finish point for discussions of torture in liberal democracies. It is, he argues, ‘the picture that bewitches us’ (Luban 2005: 1444). We liberals are not asked for our opinions on real situations in Guantanamo, Abu Ghraib, Bagram or other places of detention, but asked if we could countenance the torture of one to save many. Cruelty is displaced from real pain of the tortured to the imagined pain of the potential victims. The ticking bomb is the core of a liberal ideology that allows the unthinkable to be thought and to be approved by the highest ranks of lawyers and politicians, as well as by the public. For Luban, the real debate is not the rightness of the equation between one guilty man's suffering and the suffering of hundreds of innocents. It is about the certainty of the suffering in the act of torture contrasted with the mere possibility of avoiding suffering by gaining urgent information.
Luban concludes that the other important question that the ticking-bomb scenario and the liberal ideology of torture of which it is a central part deflects attention away from is the actual practice and authorization of torture. The scenario depicts torture as exceptional, as an ad hoc response to prevent an imminent catastrophe, whereas, in fact, it is authorized by a chain of command and, once exceptions to the prohibition on torture are admitted, the use of torture spreads and becomes routinized.
This argument about the practice of torture is raised by Dershowitz (2002), who proposed that, since torture in lesser evil circumstances is accepted after 9/11, it needs to be regulated by law. The situations in which torture techniques such as water-boarding can and cannot be used need to be made clear; a system of authorization needs to be put in place. Dershowitz suggests a ‘torture warrant’ to be granted by a judge, which must be obtained by interrogators. The individual to be tortured is specified, as are the level and duration of the pain to be inflicted. The warrant would only be granted for torture to prevent an imminent attack. Anything outside the warrant's specification would be a criminal offence. Ignatieff (2004: 139–41) and other critics such as Waldron (2005) acknowledge Dershowitz's intention to make very clear that torture is a last resort, to be used in exceptional circumstances and to be legally limited rather than given free rein, but argue that, once it becomes legally recognized and bureaucratized, its use will spread, possibly from terrorism contexts to more everyday criminal contexts.
Arguments for the legal regulation of torture in the United States are very similar to those for extension of detention without charge in the United Kingdom. The latest version of the government proposal is that there should be no general extension of the period, but that longer periods will need to be specially authorized by courts; that they must be for individual detainees only; that they will be rare; and that they will be used to prevent further terrorist attacks rather than to build cases against terrorist suspects. Again, the arguments are within the lesser evil ideology.
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The Threat to Liberal Values |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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For Ignatieff, terrorism presents liberal democratic societies with ‘the temptations of nihilism’ (Ignatieff 2004: 112–45). These temptations are the impulses to reject all their traditional constitutional values for the sake of restraining and defeating terrorism. The lesser evil ideology, which holds that the citizens of liberal democratic nations only use torture, extended detention without trial, increased surveillance and the designation of whole communities as ‘suspect’ for the sake of preventing further cruelty and not for any punitive and repressive purposes, allows politicians and public alike to introduce and support such measures as being self-defensive and necessary for the protection of the values they violate.
The strongest counter to the lesser evil argument has been that of the threat to liberal values. Dworkin (2002) has described the introduction of, and support for, strategies such as those described by Ignatieff and other commentators as the real threat to liberal democratic values. This argument of the undermining of liberal values by counter-terror measures has been made by opponents of more intrusive surveillance, extension of periods of detention without trial and the creation of legal ‘black holes’, but has been strongest in relation to the use of torture and, in particular, the sort of regulation of torture suggested by Dershowitz.
Ignatieff concludes his discussion of torture by arguing for maintenance of a line between permissible and impermissible techniques that should not be crossed. He concedes that this line is difficult to draw and that, wherever it is drawn, some will claim that it allows too much to be ethical and some that it allows too little to be effective. A line must be drawn, however, or torture will become too readily used. Ignatieff says that torture:
... when committed by a state, expresses the state's ultimate view that human beings are expendable. This view is antithetical to the spirit of any constitutional society whose raison d'etre is the control of violence and coercion in the name of human dignity and freedom. (Ignatieff 2004: 143)Jeremy Waldron (2005), in a strong critique of Dershowitz's support for the regulated use of torture to gain intelligence on planned terrorist attacks, asks what it is about the prohibition of torture that is so important. He suggests that torture prohibition is an ‘archetypal law’, by which he means a law that has a significance beyond its immediate content, in that it also expresses and represents the spirit of a body of law and shared morality that defines a particular kind of society. For Waldron, the ban on torture is archetypal of the move away from law as a system of brutality exercised through prerogative of power, the move described by Foucault (1977). Law is forceful, Waldron concedes, but:
Law is not savage. Law does not rule through abject fear and terror, or by breaking the will of those whom it confronts. If law is forceful or coercive, it gets its way by nonbrutal methods which respect rather than mutilate the dignity and agency of those who are its subjects. The idea is that even where law has to operate forcefully, there will not be the connection that has existed in other times or places between law and brutality. (Waldron 2005: 1726)Although others have argued that law is more brutal than Waldron imagines (Cover 1986; Sarat and Kearns 1991), nonetheless, he is clearly right in pointing to some vivid significance in the torture prohibition in international and national law—a significance that exemplifies the distinction between rule by law and rule by terror. Many arguments against use of a lesser evil use the image of the ‘slippery slope’, that something that does not seem so significant—for example, demanding more and more information from prospective air travellers—leads to wider erosion of liberties and rights and the step-by-step move from liberal democracy to the security state or the surveillance society. Waldron urges us to envisage the bottom of the slope first. It is, he says, our conviction that what lies at the bottom of the slope (torture, the loss of respect for human life and human dignity) is unconscionable makes us more robust in our opposition to taking steps down the slippery slope.
Ignatieff's and Waldron's argument about legitimation of torture's regulated use being destructive of liberal values and the rule of law, framed within legal discourse, has its criminological counterparts expressed primarily in terms of risk and governance. Mythen and Walklate (2006), for example, argue that, through a narrative of terrorism as the catastrophe that must be averted at all costs, a series of repressive and exclusionary measures have been introduced with widespread public support—measures that have allowed for greater surveillance, greater control and the creation of new ‘suspect populations’. Rational risk assessment and proportionate risk management have been deemed inoperable in the time of terror, and claims about the ‘near miss’ prevention of serious attacks have legitimated governmental strategies that have brought about, according to Mythen and Walklate, a diminution of democratic and inclusionary approaches to the governance of risk.
Richard Ericson (2007) also describes the transformation of risk ordering and risk management by pervasive mentalities of uncertainty and insecurity. The imperative of prevention at all costs leads to the enhancement of state power and the introduction of laws and procedures that undermine liberal-democratic principles of law, such as due process, high standards of proof and no punishment without conviction (Aradua and van Munster 2009). Ericson introduces the concept of ‘counter-law’—laws that are antithetical to the values supposedly embedded in law. In the name of self-defence of democratic societies and protection of citizens, Counter Law I undermines the checks and balances on state power, reducing rather than protecting citizens’ freedoms, and Counter Law II extends the range of sites and agencies of surveillance and control.
Ignatieff, Waldron, Dworkin and others who use the threat to liberal values argument to oppose or to set limits to acceptance of lesser evil measures challenge the assumption that exceptional times with exceptional risks make the unacceptable acceptable. They point out that national and international laws and conventions that forbid torture, which set strict limits to pre-trial detention and provide other limitations on state power, are designed to meet these exceptional threats in exceptional times. The bans on torture at international and state levels are, comments Waldron:
... set up precisely to address the circumstances where torture is likely to be most tempting. If the prohibitions do not hold fast in those circumstances, then they are of little use in any circumstance. (Waldron 2005: 1686)Liberal democratic values cannot be discarded when convenient if the state is to preserve its liberal democratic nature. If they mean anything and are taken seriously, rights and freedoms need to be defended when they are endangered by terror, and by states’ self-defensive reactions to terror. States need to defend liberal values against the temptations of nihilism. They should eschew reactions that, in Derrida's terms, attack the society's ‘auto-immune system’, that is when they are self-destructive of those very values they purport to strengthen (Derrida 2003).
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Justice and the Other: The ‘Worst of the Worst’ |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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Ericson uses the concept of ‘pre-crime’ in connection with strategies for the prevention of crime based on the precautionary logic. Here, the aim is to stop predicted crime from happening, rather than punishing the criminal after the offence (McCulloch and Pickering 2009). In the context of the war on terror, increased surveillance and control are targeted on those who are suspected of having terrorist intentions: pre-crime tactics are used to prevent the terrorist incident and the narrative of the dangerous incidents that have been foiled deflects criticism of such tactics. Another issue raised by pre-crime tactics and also torture and rendition of suspects is that the people concerned may be innocent.
In the recent film, Rendition, a man is detained, taken to a secret location and tortured. Throughout the film, the assumption is that he is innocent and, at the end, the identity of the terrorist is revealed and so it is confirmed that the man who has been subject to detention and torture is indeed innocent. One of the most powerful segments of the film is an argument between someone working on behalf of the wife to gain the freedom of her husband and a politician using the lesser evil argument about the importance of gaining information to prevent a terrorist incident. In real life, media, legal and political discussions about ‘extraordinary rendition’ of British, Australian, Canadian and citizens of other countries and of detention of citizens in Guantanamo make much of their presumed or proven innocence, or at least the absence of any firm evidence against them (Menon 2008; Otty 2008 inter alia). Similarly, in the case of the shooting on the London Underground of Jean Charles de Menezes by police operating a ‘shoot-to-kill’ policy, he is almost always described as an ‘innocent Brazilian’. The argument is framed in terms of whether enough care was taken to ascertain the identity of Menezes, not whether a shoot-to-kill policy is conscionable of itself.
Are only the innocent deserving of human rights? As reported in the Washington Post, Rumsfeld described the Guantanamo detainees as ‘the worst of the worst’, and therefore undeserving of rights and protection (Otty 2008: 447). Just as torture prohibitions need to be upheld in circumstances in which the temptation to use torture is strongest, rights need to be protected for persons who seem the least deserving of them. Justice involves going beyond protecting rights of our fellow citizens and others who engage our sympathy; it involves protecting the rights of those who are beyond our geographical, political or moral communities (Hudson 2006). Justice involves protecting the rights of ‘the worst of the worst’, as well as the rights of those who are or may be innocent.
Theories of cosmopolitan justice are increasingly being drawn upon to defend the inalienable universality of rights. In their post-9/11 reflections, Habermas and Derrida both draw on Kant's idea of cosmopolitanism (Borradori 2003). Kant's essays on ‘perpetual peace’, first published in 1784–95, proposed the creation of ‘cosmopolitan institutions’ to regulate relations between different societies, and also a ‘cosmopolitan right’ of hospitality, by which he meant the right of the stranger to be received without hostility in someone else's territory (Kant 1983). Habermas (1998; 2003) emphasizes the need for cosmopolitan institutions, advocating a global federalism that will not only regulate the use of force between nations, but will also act to reduce global inequalities, which he considers essential for the reduction of global terrorism. For Habermas, the war on terror, like terrorism itself, disrupts the discourse of justice: communication is denied by violence or distorted by gross inequalities. Removal of barriers to communication would, for Habermas, allow for the recognition of universal qualities of reason among peoples who currently seem to be so marked by difference as to make tolerance and accommodation impossible.
Derrida (2000; 2001; 2003) is more concerned with the cosmopolitan right of hospitality than with the creation of cosmopolitan institutions. Like Kant, Derrida wants to establish hospitality as a right, based on the existential condition of human life that it is impossible to live only among people of one's own choosing. It is the inevitability of encounters with strangers that is the grounding for the right of hospitality, and for ‘cosmopolitan justice’. Kant based his theory of cosmopolitanism on the simple idea that because the Earth is a globe, rather than an infinite flat plain, every step away from someone brings us closer to someone else: we cannot spread out and separate ourselves from others. Kant was writing at the time of imperialism and expanding global trade, and his theory of cosmopolitan justice was concerned with the governance of other peoples encountered through trade and conquest.
As Gilroy (2004) points out, Kant did not envisage the inhabitants of other lands as sharing a common rationality with post-Enlightenment Europeans, and so his cosmopolitan theories were for managing relationships with strangers, those with whom commonality or reciprocity of perspectives could not be established. While Kant's failure to extend the idea of a community of reason to black strangers undoubtedly reflects the limitations of the European mentality of the time, it does mean that he is proposing that the stranger, the other, is nonetheless to be treated with justice (Hudson 2008a; 2008b). Cosmopolitanism is a universalist theory: all humans, not only those who hold liberal democratic values, have rights and are owed justice.
Derrida (2003) and Bauman (2004), who also advocate cosmopolitanism in recent work, call forth the image of the stranger. The stranger, they say, is uninvited; the visit is unwanted; the presence of the stranger is uncomfortable, and makes demands; the stranger is unidentified, and may in fact be dangerous. The right of hospitality means that the stranger must, however, be received without violence and, although, as Derrida says, the possibility of danger means that there may be conditions placed upon the stranger, hospitality may be conditional but may not be absent. In terms of the war on terror, we can imagine that ‘conditional hospitality’ would mean that although the liberty of the stranger might be constrained while investigations take place, the restrictions should not continue indefinitely, the conditions of confinement should be humane and the dignity and integrity of the stranger should be respected. Most of all, the stranger should not be categorized before her nature and intentions can be demonstrated.
Cosmopolitanism's universalism means that we accept obligations to people beyond our families, neighbours and fellow citizens (Appiah 2006). Its universalism draws on the older meaning of cosmopolitanism, denoting all the citizens of the world, rather than its contemporary everyday usage denoting someone who is well travelled, who has adopted a ‘pick-and-mix’ cultural identity. Kant's cosmopolitan right of hospitality extends to all the citizens of the world, wherever and whoever they might be. For the war on terror, this means actions should be constrained by concern for the people of other places, including the places that are said to sponsor or harbour terrorists. As Beck (2006) claims, wars against non-nation state combatants, whether waged in the name of prevention of terror or humanitarian intervention, can too easily become wars of aggression, territorial acquisition or economic exploitation. What we see in Afghanistan, Iraq and Gaza clearly demonstrates the arguments of Beck and others that without a cosmopolitan concern for all the citizens of the Earth, wherever they may be, the war on terror has what, by the ethical measure of concern for the other, should be unacceptable consequences.
Cornell writes of the ‘Women in Black’ movement as illustrative of cosmopolitan concern for the other. Starting as a group of Palestinian women peacefully protesting against Israel's post-1967 occupation of Gaza and the West Bank, there are now Women in Black groups in several countries. Serbian Women in Black publicly mourned victims in Bosnia, Kosovo and Croatia, and demanded that people challenge the nationalist imaginary that reduced these victims to enemies, fated to slaughter because of their place on the Earth. Cornell quotes one Woman in Black from Serbia:
I do not see why we should not worry about ‘our people’ and ‘their people’ in the same way, because this exclusion of the other is at the roots of fascism, in the divisions between ours and theirs, me and the others and normal and abnormal. (Cornell 2004: 114)
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Concluding Comments |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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Terrorism confronts us with an other who appears irreducibly and incomprehensibly different. The terrorist seems to kill with no regard for the innocence of victims; the aim of terror is to spread the kind of insecurity and uncertainty that leads to irrational and repressive measures, to curtail our adherence to cherished values, and to lead us to take actions that damage our own auto-immunity to tyranny and inhumanity. It is hardly surprising, then, that the reaction to terrorism, the war on terror, appears to be driven by hatred and vengeance rather than a concern for justice to the other.
In a series of essays on justice written shortly before his death, philosopher Paul Ricouer looks at the relationship between justice and vengeance. He analyses the perennial tension between the two, and speaks of current times as witnessing the sense of justice being undermined by the ‘irresistible resurgence of the spirit of vengeance’. Vengeance, he tells us, cannot be at peace with justice, because the goal of justice is ‘precisely to overcome vengeance’ (Ricouer 2007: 223).
Justice calls for dialogue; it depends on understanding the needs, the motives and the aspirations of the other. Bombing, torture and detention without trial are refusals of dialogue. Although the torturer wants the victim to speak, he is not interested in the victim's story, the only discourse allowed is that the victim gives the information the torturer wants; bombing gives the victim no chance to explain who she is and why she is in the building; detention without trial denies the right of the suspect to hear the evidence against her, to give her own account.
Cosmopolitan justice means that dialogue between self and the other must be continued. Cosmopolitans do not think, as some universalists do, that there is a commonality to human mentalities to the extent that, if we find the same language, we will find that we think more or less the same (Appiah 2006). In spite of differences that may be irreducible, however, there is enough overlap in the predicaments that humans find themselves in on this fragile and unpredictable Earth that dialogue is possible. In Derrida's terms, the ‘wholly other’ is not the ‘absolute other’, and the extent of otherness and commonality becomes apparent through dialogue (Dooley and Kavanagh 2007: 123). The other is irreducible to the same, but that does not mean that understanding and accommodation—justice—are impossible.
Justice has a legal–political aspect, and an ethical aspect. It requires keeping the rules of international law, respecting legal and political conventions nationally and internationally, but it also demands respect for the other just because she is a human. Justice in a time of terror demands upholding of our own best ideals in circumstances in which it is tempting to abandon them; it needs scepticism in response to lesser evil arguments, with clear lines that will not be crossed, and it needs acknowledgment that loyalties of nationality and affinity do not allow for denying responsibilities to all humans, wherever and whoever they are. Justice in a time of terror demands expanding institutions to lessen global inequalities and expanding mechanisms to maintain controls on violence, striving for perpetual peace rather than ‘just war’.
Justice in a time of terror also calls for us to develop a more fluid sense of self, going beyond nationality and ethnicity to recognize being human as our first and most basic identity. It needs us to develop a ‘planetary humanism’, as Gilroy terms it, or a ‘grand universalism’, in Amartya Sen's terms (Gilroy 2004; Sen 2002). We need to move beyond the simple legalism of ‘international justice’ towards a ‘global justice’, where we understand that our duty of justice to other humans cannot be set aside, however fearful we are and however different they may at first seem.
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Postscript |
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TopIntroductionJustice and LegalityThe Lesser EvilThe Threat to Liberal...Justice and the Other:...Concluding CommentsPostscript |
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Shortly after submitting this article, newly inaugurated President Obama signed orders for the closure of Guantanamo Bay, reinstating the total ban on torture and ending the practice of rendition. Although the ending of some gross forms of injustice in one country is to be welcomed, justice is never secure as long as the human tendency to define others as enemies undeserving of rights and protections persists.
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