Sunday, January 27, 2008


And so once again the government has gone on a big terror offensive, and once again it seems to be an ill-conceived one. Here are a series of random thoughts on what I think about the idea of 42 days detention without charge. My first point to note is that this proposal represents a general trend towards the ‘infinite’ which is replicated in a lot of the countries which are participating in the war on terror. As its ‘high point’ this tendency is represented by Guantanamo, but I don’t think it’s an exaggeration to call this a moment in the same trend. So here are a few ideas about why 42 days detention (were it to become law) would prove anything but an exception.

Definition of Terrorism
As part readers of this blog will know, the way in which terrorism is defined in the United Kingdom has been a real bugbear of mine. The definition of terrorism which is operative in UK legislation is taken from the Terrorism Act 2000:

(1) In this Act “terrorism” means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person’s life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

(a) “action” includes action outside the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

(d) “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.

So, to sum, an act is a terrorist one if involves serious violence to a person, or serious damage to a person and is done to ‘influence the public’ or to advance ‘a political, religious or ideological cause’. This is obviously a hugely broad definition which includes (as a possibility) pretty much every political grouping in the UK today (as they all advocate this to some degree). Presumably then, if one is suspected of planning violence towards people or property for a political end there is the possibility of being detained for 42 days without being charged.

Of course, in practice ‘terrorist’ will usually be taken to mean ‘Islamic terrorist’, but even then the wide-ranging nature of the definition can feasibly cover protest which ends up in intended property damage. Furthermore, there is no guarantee that this would not be extended past this ‘core’ of ‘terrorists’ (not that I think this core is acceptable), there is nothing in the wording which doesn’t mean this might extend broadly to a number of political groupings which we wouldn’t think of as ‘terrorists’. Having established the ‘infinite’ character of the ‘definition’ of terrorism, we go on to consider some other elements of the proposals. The Home Office has offered four examples when the power might become activated.

The foiling of a major plot
There are problems with this right off the bat. What is a ‘major’ plot? One which kills a number of people? One that damages a lot of property? But this of course raises another question how much is enough? Perhaps the proposed law will set a number of people that might be killed which we be sufficient to count as a ‘major’ operation. But this itself would be difficult, does anyone really want to make the type of moral judgment calls that say ‘only ten people could die, well that’s not enough’?

So it seems to me that even in the abstract a ‘major’ operation is one which is hard to judge. This is of course compounded by the fact that the 7/7 bombings would presumably be treated as a major operation. Now, whilst the bombings are obviously abhorrent the fact is that only 50 killed were people in them, if this is taken as a benchmark for a ‘major’ operation, then I would imagine it could extend to a good number of ‘potential’ terrorist operations. Linked to this of course is the fact that it is ultimately impossible to know in advance how major a terrorist operation is likely to be. This is one of the true problems with ‘pre-emptive’ detention, just like pre-emptive self-defence it has to act before the ‘attack’ has taken place, but it is not possible to know how serious it will be in advance. Compounding this is the fact that by definition there is an absence of evidence in these cases (hence the need for longer detention). What this all tends to mean is that it will be very difficult to determine a ‘major’ attack before it happens.

A complex individual case
It strikes me that by definition any case which the police will request an extension for is one which is ‘complex’. If the case was not complex enough to warrant 42-days detention then presumably the police would simply have charged the suspect. Bearing this in mind, I fail to see how – in the abstract – such a category could be particularly useful. However, it is probably the case that this would be part of an overall justification, but this of course brings exactly the same problems prior.

A major operation
I take it ‘operation’ refers here to the size of the police operation. Again, this strikes me as problematic for the reasons raised above. Presumably a major police operation is one which corresponds to the threat of a major terrorist attack. I question how it is that the ‘size’ of an operation can really be judged. So again, it seems of certain, possibly unlimited application.

An operation involving many countries
Many countries? One? Two? Three? Involving? How close of a link? All of which seems to belie the fact that apparently we are living in an age of ‘international terrorism’ with international terrorist networks etc. It strikes me then, that even if a threshold is established for what constitutes ‘international’ this will still be massively over-inclusive.

These brief considerations are only meant to argue one thing. This is that the apparent ‘exceptional circumstances’ that might be generative 42 days are entirely indeterminate, in that they don’t provide any real guidance for a decision-maker as to when it is that the power becomes active. In effect then, the power becomes ‘infinite’. This is of course a function of the ‘discourse’ on terrorism, which posits that terrorists are everywhere, and always a potential threat. But the point is that this threat is always unknowable in advance, therefore anyone is a potential candidate for intervention.

Of course, ultimately this doesn’t necessarily matter. I personally would argue that indeterminacy is a structural condition that is thrown up systematically by the contradictory nature of the legal form. Since the law is a form of social regulation that operates as between abstract individuals it constantly oscillates between ‘protecting the individual’ and ‘protecting the public’, these two imperatives basically mean that diverse outcomes can be justified. The point therefore is not what the ‘law’ says, but what the decision-maker does (a decidedly Schmittian point I know). So what we have to question is – bearing in mind the potentially infinite character of such provisions how will they be resolved?

Here, of course there are a plethora of inquiries we could make. Schmitt, for instance, at first resolved this is a decisionistic fashion. Thus, he tended to argue (in Political Theology) that this decision would ultimately read of the personal decision of the decision-maker. Later he realised this position was probably inadequate and moved towards what he called ‘concrete order’ thinking, whereby institutional priorities are what determines a decision (he advocates this position in On the Three Types of Juristic Thought which people tend to ignore). Then there are the American Realists, who tended to argue that economic factors were the prime determinant of decision-making. I tend to think that our inquiry into decision-making cuts across several lines. Firstly, we do have to understand that an individual (or group thereof) is making a decision. But this decision is informed by a number of factors, these are primarily economic, political and (dare I say it) ‘moral’, but these factors are articulated within an institutional matrix. With this in mind, I think we should take a look at the way in which the ‘decisions’ about 42 days will proceed:

A chief constable and the director of public prosecutions ask the Home Secretary to authorise the extension which remains in force for up to 60 days. She then tells Parliament within two days the 42-day rule is available to police.

A judge has to approve the holding of each suspect for more than 28 days and the terror powers watchdog overseas the case. Parliament gets a vote within 30 days of the law being activated - and if they object, the 42-day power is quashed. If they approve, the power remains in force for the full 60 days.

Parliament cannot quash the power at the outset. If police applied to use the power on day 27 of an arrest, and Parliament did not get an opportunity vote until two weeks later, then an individual would have been held for the full 42 days before MPs had been able to oppose the measure.

The first point to note is that there will always be a tendency for ‘public pressure’ about being ‘soft on terrorism’ to push decision-makers towards deferring to the police. The constant threat that they might be responsible for the next big terrorist attack is something that will be politically important to Ministers and MPs and morally important to Ministers, MPs and Judges. This is reinforced by my analysis earlier – that it feels particularly difficult to say this number of deaths would not be sufficient to warrant depriving someone of their ‘liberty’. Furthermore, there is the pretty much omnipresent discourse about ‘the police’ which permeates everything, our society has a tendency to venerate the police and everything they say and do, although there may currently be problems, it still seems a political taboo to question the veracity or accuracy of police statements.

It seems to me that we can pretty well rely on a Home Secretary to go with most of what the police say about threats etc. Aside from the general political pressure, it is clearly the case that the institutional position of the Home Office tends to push Home Secretaries towards authoritarianism, or at the very least listening to the police. Now whilst this may not be the case in respect of pay, I tend to think that in respect of ‘security’ the Home Secretary will always agree with the police.

I’d imagine that – to a large extent – most MPs would be the same. Here I think we have to draw a distinction between the abstract and the concrete. I think that it is quite possible MPs will oppose an abstract law, which makes it possible to detain people, especially on the basis that it is ‘not needed’ or is ‘hypothetical’. This is because they can claim to be in favour of liberty as against hypothetical problems etc. But, when they are faced with the Chief Constable telling them ‘if we don’t detain this person there is a possibility he will conduct a major terrorist attack, for which you will be responsible’, things may be slightly different. This is of course always compounded by the fact that the police are unable to give all the evidence they have a their disposal, for fear of giving away informants etc. Ultimately, it seems to me that the political cost of going against the police and then being proved wrong is much better with agreeing with them and detaining an innocent man.

And finally the judiciary. Well, I think it is probably a little bit more complex. Firstly, it is the case that judges – as they are not elected – are not subject to direct political pressure in the same way that politicians are. This being said, judges are still participants in the collective, communal life of the country, and so as such are subject to some of the same forces. Furthermore, although judges are not direct participants in the ‘democratic’ political process they are nonetheless a constituent part of our political system as a whole. As such, their position can be threatened or strengthened in given political conjunctures. One need only observe the mini-declaration of war by Lord Woolf a while ago, to understand that judges are just as ‘political’ as your average MP.

Secondly, people tend to invoke cases like the Belmarsh detainees case to show that the judiciary is either ‘soft on terrorism’ or ‘finding the right balance’. But of course this is problematic, especially if one actually examines the reasoning in that case. In the wake of 7/7 the House of Lords (with the exception of Lord Hoffman) acknowledged that there was a public emergency which threatened the life of the nation. This meant that the only question was whether the measures were proportionate or not. The majority concluded they were not because there was no rational connection between the means and ends, and because there was irrational discrimination. In theory both of these problems could have been overcome by locking up everybody up rather than just foreigners. This being said I haven’t read many of the recent cases on control orders, so I’m not entirely sure about this.

Ultimately, when it comes to the judiciary, I think that they are less likely to immediately lock people up. But I do tend to think that when faced with the stark opposition between ‘liberty’ and ‘security’ a judge may ultimately choose the latter. Simply because there is always the chance – no matter how small – that he will be ‘responsible’ for a terrorist attack. Putting someone in such a concrete situation does not – for me – seem conducive towards finding a balance.

In lieu of a conclusion
So what do we conclude here? I think the first point is that the particular shape of the ‘enemy’ in the ‘war on terror’ (and indeed its characterisation as a war) tends to push ‘law’ to its indeterminate limits. This ends up creating exceptions with infinite grasps. But of course a concrete decision has to be articulated within this context. And it strikes me that any concrete decision will be so agonising, that seems to me it will allow for an unchecked expansion of this power, I leave everyone with a quote by Žižek (on torture) which seems appropriate, if not entirely so:

If the choice is between Dershowitz’s liberal ‘honesty’ and old-fashioned ‘hypocrisy’, we’d be better off sticking with ‘hypocrisy’. I can well imagine that, in a particular situation, confronted with the proverbial ‘prisoner who knows’, whose words can save thousands, I might decide in favour of torture; however, even (or, rather, precisely) in a case such as this, it is absolutely crucial that one does not elevate this desperate choice into a universal principle: given the unavoidable and brutal urgency of the moment, one should simply do it. Only in this way, in the very prohibition against elevating what we have done into a universal principle, do we retain a sense of guilt, an awareness of the inadmissibility of what we have done.

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