The response I made some weeks after the attack on the twin towers by and large has been reinforced over the years. The core of my argument was the idea that the practices and language of security that were so pivotal to the response to the events of 9/11 risked marginalizing the broader context of power and interest that shapes these transnational issues. As such, these shifts toward “securitization” of transnational issues reflected a broader process of depoliticization in both domestic and global spheres that organized regulatory responses to crises through the prisms of security and crime. In a way, it was not possible to see at that time that this process of securitization increasingly involves the location of these security-led regulatory responses within a range of non-governmental institutions and processes. Think here about passenger security or the way that Amazon’s cloud service removed WikiLeaks material after concerted pressure from US politicians.
The other point—which was not as clear then as it is now—is how the events of 9/11 were symptomatic of a broader crisis of the postwar multilateral order. The events of 9/11 and its aftermath, the intervention in Iraq, the treatment of so-called enemy combatants, and the extraterritorial reach of US domestic law crystallized deeper fissures in the political and social foundation of the multilateral system.
Security as anti-politics
The significance of this turn toward the securitization of ever-increasing areas of global, social, and political life is a political process that quintessentially transfers domestic forms of policing power to the governance of transnational politics. Just as curiously, accompanying this policing within a broad swath of global governance issues has been a securitization of civic and social life in modern liberal democracies. As such, it reflects a broader political trend of Governing through Crime—the title of a perceptive book by Jonathan Simon1Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford: Oxford University Press, 2007).—in countries such as the United Kingdom, Australia, and the United States, though we might add to Simon’s argument that it is as much a governance of risk as it is of crime. Indeed, this is what is most striking about the new security debate: the extension of the US “law-and-order state” to the transnational arena.
In this context, consider, for example, the high priority given to issues of border control and the use of identity documents. Indeed, the extensive regulation of border controls by the European Union, the United States, and Australia is a telling example of the growing securitization of transnational relations. Another illustration is the policing of state building, as exemplified in the Australian intervention in the Solomon Islands.2Shahar Hameiri, Regulating Statehood: State Building and the Transformation of the Global Order (Basingstoke, UK: Palgrave Macmillan, 2010). As I write, the riots in London and other major UK cities will no doubt reinforce these processes toward governing complex social issues through the prism of crime and security. There have been suggestions for extensive powers to be given to police to manage public disorder.
Hence, in the aftermath of the events of 9/11, the UN Security Council passed Resolution 1373 imposing administrative obligations on all members of the United Nations to adopt legislative and executive measures to combat terrorism. In fact, the resolution incorporated instruments such as the Terrorism Financing Convention, which does not have universal support within the ambit of this binding resolution. In effect, Resolution 1373 created a form of global administrative law that required member states to align their domestic laws and regulations and standards in ways that prevented access and flows of finance to organizations deemed to engage in terror. In this sense, the impact of the events of 9/11 was to presage an emerging global administrative law that influences not only domestic law but also fundamental constitutional practices.
I believe this emphasis on notions of policing demonstrates the most far-reaching implication of 9/11, namely, the creation of a global state of emergency. Much of the literature in the aftermath of 9/11 has, I believe, played hard and loose with this idea of an “emergency” and created what is essentially a new jurisdiction of global emergency governance. A distinctive feature of this emergency governance is that it enables the creation and expansion of new forms of executive power but not the untrammeled exercise of sovereign decisions, as the simplistic appeal to ideas of the exception seems to imply. Rather, new jurisdictions of emergency lead to the creation and entrenchment of new forms of administrative power and jurisdiction. For instance, these new forms of power are markedly visible in “control orders” or the treatment of “enemy combatants” in the United Kingdom and Australia. As we have seen with Guantanamo, the jurisdictions of emergency governance have been layered on to the domains of national and international law. These produce novel forms of administrative power and regulations pertaining to acts in both the international and national domains of governance that make porous the boundaries between state and non-state actors and civilians and combatants.
These new regulatory spaces of emergency governance in liberal democracies have been created under the umbrella of Resolution 1373. These regulations have been reinforced by a variety of other equally important administrative arrangements that include, for example: bilateral agreements on joint intelligence sharing, the extraterritorial reach of domestic law through the practice of rendition, and regulation on airline passenger data between the European Union and the United States that involves both private and public actors. The upshot of these is a paving of the way for a new specialized system of emergency governance with the potential to challenge basic constitutional values and principles.
Consequently, the broader implications of the thrust toward the internationalization of police lie in the powers to create specialized systems of emergency governance and separate distinctive jurisdictions inside and outside national boundaries to monitor, control, and detain those deemed to be a threat to the constitutional order. Indeed, Guantanamo, far from being a “legal black hole,” is in fact a site of emergency governance that straddles national and international law, regulated by complex administrative regulations and subject to contestation by multiple authorities.
The nature of the porous boundaries between the domestic and international is demonstrated by examining the role of “enemy combatants.” Enemy combatants occupy a status in a legal space created when individuals fall between domestic legal enforcement and the laws of the war system. Hence, these new jurisdictions blur the boundaries between domestic and transnational, “legitimate” and “illegitimate” armed conflict, and criminal law and political justice. Boundary issues such as these raise fundamental questions that challenge the nationally based forms of constitutional jurisdiction that underpin domestic law enforcement as well as laws of war.
In essence, these new forms of legal practices change the territorial scope of national constitutions and underline how flexible boundaries are increasingly used to deny access to constitutional protection. To be sure—and this needs equal emphasis—there has been considerable legal and legislative contestation over these new spaces, which provides opportunities to protect constitutional rights. For example, British and Australian court decisions have restricted the scope and use of control orders. Nevertheless, regardless of the ultimate outcome of the so-called War on Terror, these transformations in the nature of constitutional practices will be difficult to reverse. Indeed, the legitimatization and extension of emergency governance to swaths of transnational issues beyond this War on Terror may well be the most enduring consequence of the events of 9/11.
Yet, the most troubling conclusion that emerges from this analysis is that the new global order is as much about transformation of liberal democracies—their politics and governing institutions—as it is about policing the globe. This change in the nature of the state is clearly visible in the United States with the emergence of an almost imperial presidency. The significant executive freedom given to the US president by Congress has overturned many fundamental assumptions about the roles of judicial and legislative branches in limiting executive power.
A crucial aspect of this enhanced authority is the manner in which the internationalization, or the globalization, of a state of emergency has provided a rationale for an enhanced power of executive action over a range of domestic issues, such as detention of terror suspects, the interception of electronic communications, and the regulation of financial flows to groups identified as supporting terrorism. Some have seen these developments as suggestive of a rebalancing of security and liberty within modern liberal democracies. But my reading of this scenario suggests that something more substantial is going on here, and this may require a change in our understanding of liberty in terms of security. The question here is not simply one of a balance between security and liberty but a more fundamental reframing of liberty in terms of security.
The “War on Terror” has acted as a catalyst for a putative new constitutional settlement based on an enhanced role for security in political reasoning about constitutional values and practices. Given that security questions have become intertwined with the defense of “core political values,” this only serves to debilitate political contestation and enhance executive power. Here, the explicit appeal to values of legitimacy is at the cost of a commitment to formal processes of legality and entrenched principles of political equality underpinning the liberal constitutional order. Do these trends suggest a new post-liberal politics that has a distinctive authoritarian streak?
The end of the “multilateral moment”
Looking back over the last ten years, it is now clearly visible that 9/11 is emblematic of a broader crisis of the postwar multilateral order and its driving principles. To be sure, the forces of erosion are—as I have argued elsewhere—much deeper.3See Kanishka Jayasuriya, “Struggle over Legality in the Midnight Hour: Governing the International State of Emergency,” in Emergencies and the Limits of Legality, ed. V. Ramraj (Cambridge: Cambridge University Press, 2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1506244; and “The Strange Death of the International Liberal Order,” Economic and Political Weekly 23 (2010): 75–86, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721896. The events of 9/11 provided a trigger that shook this order to its very roots. The postwar model of multilateralism was above all based on an inclusionary model of international citizenship that incorporated the formal political equality of states. It also served to progressively broaden the membership of international society and placed emphasis on the role of legal procedures and deliberation in resolving international conflicts. Gerry Simpson aptly calls this “charter liberalism” in the sense that it is based on many of the animating ideas of the UN Charter.4Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004).
The intervention in Iraq, albeit justified by the events of 9/11, provides stark evidence of the superseding of a particular brand of “charter liberalism” by a new coercive order that is considerably more hierarchical and exclusionary than the postwar liberal order and its distinctive system of representation and deliberation. Meager and limited as it has been, charter liberalism sprang from the same political project of social democratization that had been such a discernable feature of the postwar world.5Tony Judt, Post War: A History of Europe Since 1945 (London: Heinemann, 2005). Over the long term, it may well be that it is the shift from the social democratic postwar world, with its associated national and global settlements, to a more neoliberal world that will define the next couple of decades. Future historians may view 9/11 and its aftermath as emblematic—rather than determinative—of this transformation in the global political order.
In the emerging global order, there is a discernable move toward enforcing a new legitimacy in standards of good governance and conduct. This enforcement comes even at the cost of universalism and the formal equality of international law. Indeed, in the enforcement of this new legitimacy, there is a deeply troubling return to the old “standards of civilization” arguments that sought to reorder the non-Western world. Certainly, concepts like “failed states” and “regime change,” as well as the revival of the idea of trusteeship, point us in that direction. Yet, there are some important differences. Whereas, previously, these arguments emphasized the use of international law to enforce standards in the emerging international order, international law itself is now being abrogated.
Even more relevant here may be the mandate system of the League of Nations to control the colonial territories of Germany and Turkey regarded as mandate territories. Certainly, in the new governance agendas and the move to enforce international regulatory standards, there is much to suggest parallels with the mandate system. But we need to appreciate some of the very important differences between the reconstituted global liberal order and this system. Instead of enforcing a set of paternalistic standards that aim to bring the third world into international society, the post–Cold War transformation in global governance is directed more toward regulating and managing risks within the global society, the boundaries of which run within, and across, states. From this perspective, this new governance seeks to transform systems of internal governance—state building, in contemporary parlance—rather than to set the benchmarks for admission into international society. It is about the construction of a broad regulatory order.
The substantial point of difference between the new regulatory governance and the earlier system of standards of civilization or the mandate system is that global conflicts are now seen to arise from a range of existential threats to the political forms of the liberal democratic state of the “West” rather than from a departure from old standards. Hence, fundamentally political relationships are interpreted as existential antagonisms. This political existentialism has deep implications for democratic politics as it posits a political unity around a set of core values that are inimical to the contestation and pluralism of debate within the polities of advanced liberal democracies. The decline of the social democratic worldview at the end of the Cold War has seen the triumph not so much of liberalism but of a particular kind of “values” liberalism that is hostile to contestation and pluralism of international or domestic politics.
George Dangerfield’s account of Edwardian politics in his influential book The Strange Death of Liberal England vividly describes the demise of Victorian liberalism:
The England upon which Mr Asquith landed in May 1910, was in a very peculiar condition. It was about to shrug from its shoulders—at first irritably, then with violence—a venerable burden, a kind of sack. It was about to get rid of its Liberalism.6George Dangerfield, The Strange Death of Liberal England (New York: Perigee Books, 1935), 7.
How resonant does this description sound at the beginning of the second decade of the twenty-first century? We face a global order that seems to have been also shrugged off, irritably, in the 1990s, and then, with more violence, an altogether different post–Second World War liberalism. The post–Second World War liberal order has died just as strangely as did the Victorian liberalism mourned by Dangerfield.
Kanishka Jayasuriya is professor of international politics at the University of Adelaide and director of the Indo-Pacific Governance Research Centre. His areas of interest include global governance and regulation, transnational law, and the broader dynamics of state and regime transformation. His most recent books include Statecraft, Welfare and the Politics of Inclusion (Palgrave Macmillan 2006) and Reconstituting the Global Liberal Order: Legitimacy and Regulation (Routledge 2005).