Terrorism and the End of the Rule of Law

WESTERN DEMOCRACIES ARE FIGHTING TERRORISM BY RESTRICTING FREEDOM, THEREBY RENEGING THEIR OWN VALUES. RATHER, EXTREMISM SHOULD BE FOUGHT BY MEANS OF A CULTURAL COUNTEROFFENSIVE, A JURIST ARGUES

by Arianna Vedaschi, Dept. of Legal Studies, Bocconi
Translated by Alex Foti

Paris, Sydney, Ottawa, Boston, without forgetting Baqa, the Nigerian city burned to the ground by Boko Haram along with sixteen other villages, in the same hours as the world was witnessing the crimes perpetrated by the Kouachi brothers and Amedy Coulibaly. These terrorist attacks come in the aftermath of the deadly bombings of Madrid in 2004 and London in 2005, and mark an era tragically opened by the September 11 attacks.

From a legal point of view, Western governments have mounted a swift response. A rapid comparative view of anti-terror legislation shows that the securitarian approach has been prevalent, with tough measures to counter international terrorism being adopted by the world’s democracies in the post-9/11 era. Examples of this are extensions in the duration of pre-trial imprisonment (for instance in the UK), the limitations to the right of legal defense for suspects (it’s emblematic that Canada introduced the hitherto unheard figure of “special advocate”), simplified procedures for the expulsion of foreigners, the introduction of new criminal charges that are ancillary to those of international terrorism, especially concerning funding and financing, not to mention targeted killings (committed by the US), forcible disappearances (such as the kidnappings of suspects in the Extraordinary Rendition program launched by the US in collaboration with several other countries), incommunicado detentions, the transnational outsourcing of torture, and, finally, CIA’s secret prisons, to which must be added the notorious cases of Guantanamo and Abu Ghraib. And the list could go on with the programs of mass surveillance, such as Prism, which stores data coming from Google, Apple and Facebook, and is not even the only system for profiling users with the aim of pre-empting terrorist attacks in existence around the world.

From the analysis above, it clearly emerges that the reaction of democracies has been neither light-hearted nor weak. In effect, without any formal declarations, Western states have de facto suspended the rule of law and due process, in order to face down the emergency and threat posed by terrorism.

The Paris attacks however demonstrate that the unprecedented move toward the securitarian approach is not enough to protect civil society. In spite of this empirical evidence, in the wake of the Charlie Hebdo murders, Western governments have continued, and actually intensified, the legal approach pursued over the last decade. Currently, European cabinets are discussing measures that entail the suspension of passports of individuals coming back from Syria or other hot zones (Iraq, Yemen, Nigeria), the shutdown of certain Internet sites, and the facilitated deportation of foreign nationals which are suspected to be terrorists.

Even if no state of emergency was formally declared, given the framework of counterterrorism measures that are already in force or are likely to be passed, one is pushed to wonder whether the rule of law, the bedrock on which liberal democracies were built, still exists. The inadequacy felt by democracies in the face of the terrorist threat seems to have made them betray their own values. Freedom can be suppressed by the terrorists’ cowardly and barbarous executions of Charlie Hebdo’s journalists, but also by sacrificing freedom of movement and the right to privacy, by controlling indiscriminately the lives of people through online surveillance, or turning a blind eye to the abuses committed at Guantanamo, and the tortures inflicted by undemocratic governments at the behest of the West.

The response to the latest form of terrorism, which is said to be molecular, since it seemingly lacks centralized strategic command, but is rather characterized by ideological radicalization and spontaneous attacks, cannot just be legal, must be political, too. Western democracies have to mount a powerful cultural counteroffensive, which should be deployed with the help of the political and religious leaders of Islamic countries and aimed at disarming the minds of terrorists. Western countries should respond with media, ideological, and linguistic countermeasures.

Democracy, rather than being exported, should be practiced by not abdicating the rule of law.