This piece is some reflections on an article by Lucia Zedner entitled Securing Liberty in the Face of Terror: Reflections from Criminal Justice from the Journal of Law and Society. Although several of these recent posts have and will be discussions based on journal articles – this doesn’t mean that the issues are only intelligible to Criminologists – indeed that would be a very dangerous assumption.
In the so-called ‘war on terrorism’, governments have made many attacks on civil liberties in the name of increasing security. Often there is an assumption of a balance between the two that needs to be met, but that the ‘terrorist threat’ has upset the equilibrium and necessitates it swaying away from civil liberties towards security. Zedner’s article focuses particularly on critiquing this notion of balance as well as the relevance of criminal justice to terrorism legislation.
Zedner asks three questions on this notion of balance; What tips the balance? In whose interests? What lies in the scales? She argues that particularly when we have such an ill-defined threat such as terrorism, then any legislation can be extended fairly easily (she cites the example of legislation for Nothern Ireland being extended to Britain) – especially when you have defined someone where ‘the proof of guilt is a mere formality’. She is also critical of the culture which demands ‘that even the innocent individual must positively welcome surveillance, arrest, or interrogation as being in his or her own (as part of the collective) security interest’.(pg514)
Zedner also points out that such a balancing act is impossible to do in any kind of scientific way, as she notes ‘Precisely because it s unknowlable, prospective risk always threatens to outweigh present interest’.(pg.516) Indeed, with such a ‘threat’ the balance is never stable, as she notes ‘The deployment of security as a pursuit is potentially hazardous therefore because it presumes an endless quest, which must continually anticipate and forestall the next challenge by pre-emptive measures.’(pg.518)
However, there are points I would disagree with Zedner’s analysis. Firstly, she assumes that ‘cases of catastrophic risk, public officials may act extra-legally to engage in preventative interrogational torture (that intend to elicit information with which to avert a catastrophe).’(pg.521) actually exist. As one of the other students in my criminology lectures points out (he is doing his dissertation on the topic), these situations have never really existed – it is just an abstract moral question with no basis in reality. I also disagree with Zedner when she says that ‘These are not normal times…’(pg,522) because of the heightened threat of terrorism, but during the 70’s and 80’s wasn’t there the threat of IRA terrorism in Britain, what about Timothy McVey in the US for example? I must add, she does firmly advocate due process and human rights during all of this, but she should be critical of these assertations and the interests they serve.
Zedner as I have mentioned correctly defends due process and advocates that ‘Measures against terrorist suspects should, as far as possible, be taken within the mainstream criminal justice system’(pg.529), but I would go further and remove the ‘as far as possible’ from that sentence, after all terrorism is multiple acts of grevious bodily harm, murder etc. She also sees judges as the defendants of due process and civil liberties in general. However, she also points out that ‘Judges have a worrisome tendency to defer to the executive in matters of security, particularly in times of heightened threat’(pg.526). This however, is not something someone with a Marxist view of how the state operates should be surprised about at all. I have discussed the judiciary in more detail elsewhere however.
In her conclusion, Zedner notes ‘Instead of accepting security as an end in its own right, asking ‘security of what?’ obliges us to specify the goods to be secured. Liberty is one such good’(pg.532). I think a more pertinent question would be security for whom, for which group in society is this ‘war on terrorism’ being conducted? Although Zedner’s article raises some interesting questions, she is far from supplying the answers.
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