The dramatic events of September 11, 2001 have ramifications for the nature of global governance as well as the institutions of liberal democracy. The most serious danger these events pose is their potential to usher in, under the appealing cloak of ‘security’, a debilitating form of ‘anti politics’ that marginalizes the constructive conflicts—the debate and discussion—that animate the public sphere in liberal polities.
Some of these effects are already apparent in the US, where self-censorship in the media has made discussion of the politics of terrorism all but impossible. Perhaps more seriously, the language of security serves to frame facets of transnational governance in terms of ‘risk’, thereby occluding important issues of conflict and power. Take, for example, the pressure on the Canadian government by the United States to impose ‘perimeter continental security’, with the objective of establishing common entry and exit policies for visitors, immigrants, and refugees. Posing the movement of people as primarily a security risk submerges the significant questions of power and distribution raised by the proposed policy of continental integration, and constrains serious discussion of the proposal.
It could well be argued that these developments presage the emergence of a new security state. Indeed, an analogy for the present crisis can be found in the anti-Communist and cold war rhetoric that dominated US domestic and international politics in the decades after 1945. The obvious parallels are to be found in the increasing importance attached to issues of ‘security’ in both domestic and international politics. The decisive shift in the political climate initiated by Truman, and consolidated by Eisenhower, lay not in the increasing salience of security to public policy and political language, but in how the US state apparatus came to be dominated by cold war imperatives. The pursuit of these imperatives was often at the expense of broader civil liberties, as exemplified by the infectious spread of McCarthyism.
Like the cold war, the present crisis has also exposed the precarious position of civil liberty as this ‘new war’ gathers steam. The US Attorney General has proposed far-reaching changes—including the preventive detention of immigrants on suspicion of terrorism—which would severely curtail civil liberties. Further, the US President has signed an order for special military tribunals to try those charged with terrorism. These tribunals have lower standards of proof and admissibility of evidence than ordinary judicial processes. Yet other actions such as increasing surveillance and wire-tapping powers pose serious problems for those concerned with basic rights. Similarly, the British Home Secretary has proposed tough anti-terrorism legislation that includes extending the already substantial powers to detain suspected terrorists and the extensive use of surveillance powers. In Australia, the ruling Liberal and National Coalition, with the support of the opposition Labor Party, has enacted draconian laws on border security that effectively curtail judicial review for asylum seekers and give wide discretionary powers to Ministers.
In surprisingly short order, a broad set of emergency powers based on the concept of ‘exceptions’ has emerged to offer political leaders and other public officials a legislative framework for acting outside normal constitutional and representative institutions. Carl Schmitt, the deeply conservative jurist who was a critic of the Weimar Republic, is perhaps the most pre-eminent theorist of the exception: ‘exception’ is the capacity of the sovereign to make decisions in terms of its political will rather than be constrained by normative ‘law’. Schmitt suggests the exception as something that is ‘…codified in the existing legal order, can at best be characterized as a state of peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to preformed law’ (1985: 6). In this context, the emergence of certain aspects of a ‘state of exception’ (to use a phrase of the outstanding Weimar jurist Franz Neumann) should be a cause for concern for those interested in the protection of fundamental political rights.
One of Neumann’s (1986) central arguments is that the development of capitalism leads to the development of non-formal instruments of law. The last century has seen a gradual acceleration of legal fragmentation and dissolution. Legal deformalization Neumann argued is rooted in a fundamental transformation of capitalist economies over the greater part of the twentieth century. It could be argued that the new language of security reflects the fact that globalization has changed the internal architecture of the state and this is markedly apparent in the increasing emphasis placed on aspects of ‘risk’ and ‘security’ across social life. It leads both at the international and domestic level to the kind of legal deformalization so astutely analyzed by Neumann. This process has been accelerated by the events of September 11.
At this point, the analogy with the cold war ‘national security state’ is misleading because it obscures how globalization has transformed the very notion of security in recent years so that it is increasingly understood in terms broader than merely as a matter of ‘guns and bombs’. The language of security now permeates every sphere of life—ranging from finance to the environment. International relations boffins like to talk about ‘securitization’ to describe this expansive notion of security. For example, one of the most striking elements of the policy response to this crisis is that many ethnic and minority groups are now deemed to pose a threat to national security. Many cold war warriors in the United States have given extraordinarily generous airplay to Sam Huntington’s thesis of a clash of civilizations. Unlike during the cold war, these threats to national security are framed in terms of ‘ethnicity’ rather than ‘ideology’, but the outcome poses the same challenge to basic rights. Further, this shift towards a ‘security state’ is not confined to the US and Britain, but is evident in a number of European countries as well as Australia where members of the ruling Coalition government have implied that Afghan refugees and Muslim immigrants were ‘terrorists’.
But this language of security is not just confined to mainstream security agencies. It has also become an intrinsic rationale of the program of development agencies like the United Nations Development Program (UNDP). For these international agencies and many other non-governmental organizations, the vacuous notion of ‘human security’ now includes such areas as poverty and the environment; it is the transnational analog of ‘community policing’. This new perspective embodies the more expansive understanding of security employed by establishment security agencies.
The expansive definition of security—whether used by the UNDP or the Pentagon—has disturbing consequences. Security in this conception takes over the idea of risk management from penology and other related disciplines. 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 respect, one of the most interesting and worrying developments is likely to be the internationalization of the ‘state of exception’.
New forms of risk management apply risk profiles to a set of relationships, institutions, and even geographic sites, rather than endeavoring to manage or transform the behavior of individuals. This emphasis on the management of risk at the level of population rather than individuals is critical. It is reflected in the high priority given to issues of border control and the use of identity documents. This approach to risk control and management strips away the social and legal context of individual behavior as governments and other organizations seek to manage the ‘sites’ of criminal activity such as terrorism, international drug trafficking, or the current panic over so-called ‘people smuggling’. The effect is depoliticization of complex problems and issues, as transnational problems are disembedded from the politics of power and interests and situated within the anti-political framework of security and risk. Within the framework of the new security language—whether it is the ‘hard’ security of Bush’s National Security Council or the ‘soft’ security of some international development agencies—the conflict and debate that are the raw material of politics get submerged in the search for policies of risk management. This ‘politics of anti-politics’ is deeply inimical to the institutions and values that sustain and animate politics in liberal democracies.
There are good reasons for thinking that even before the events of September 11, the ‘criminalization’ of various issues in the transnational system was well in train. The massive intensification of border and immigration controls in most liberal democracies (for example, at the US-Mexican border or with the brutal and racist treatment of refugees by Australia) points towards the development of the new transnational ‘law and order state’. In recent years, the Anglo-American democracies of the US, Britain, and Australia have developed harsh penal regimes to combat so-called law and order problems, spurred on by a media-stimulated climate of fear. A similar process is well underway in the global arena.
Admittedly, in a globalized world, the state loses some of its traditional capacities and functions—such autonomy in national economic policy-making—to increasingly emerge as a regulatory state providing economic and social order. One important dimension of this new regulatory state is the move towards a kind of economic constitutionalism, which attempts to insulate key economic policy-making institutions such as independent central banks from the politics of bargaining. Just as important, I have argued, is the shift towards the securitization of civil society reflected in policies of transnational risk management. The idea that the events of September 11 can somehow be seen as the traditional state cantering back into prominence is naive and simplistic. Rather, developments reinforce the emergence of a new form of the regulatory state that has the ‘securitization of civil society’ as a key governance strategy. In fact, it is possible to see in some aspects of these developments the ‘internationalization of the state of exception’ that Neumann so brilliantly analyzed.
However, quite apart from its deleterious consequences for civil liberties, the new language of security may prove to be a significant hindrance to developing a truly global rule of law and cosmopolitan democratic governance. This is surely is the most effective means of dealing with the terrorism witnessed on 11 September. And make no mistake; these problems have to be forcefully confronted by the global community. Neo-fascist fundamentalism (of Islamic and other hues) poses a threat to politics—and the discussion that is vital to its survival—much more serious than anything contemplated in the war against terrorism. But we should not allow this crisis to be used to threaten the very politics that the neo-fascist movements so abhor. These movements can only be combated by articulating the rationale and principles underlying a global rule of law, which in turn means we need to acknowledge the elements of conflict and power that pervade modern politics. It forces us to return to the politics that the new expansive conception of security so clearly eschews.
Professor Kanishka Jayasuriya is a Senior Research Fellow at the Southeast Asia Research Centre, City University of Hong Kong.