Part 2
The second article in this two-part series seeks to build on the assertion that declaring “war” on terrorism is a flawed strategy in the struggle against terrorism, and explores one explanation for the use of such rhetoric, rooted in securitisation theory. It argues that rhetorically constructing the struggle against terrorism as a war is a useful strategy if one wishes to legitimate the use of extrajudicial force. By adapting legal precedent set during past exceptional circumstances to place detainees both beyond the US criminal justice system and the protections of the Third Geneva Convention, the United States demonstrated how to successfully securitise terrorism. Whether this was the conscious purpose of the declaration of the War on Terror is open to debate.
My previous article explored the pitfalls of rhetorically constructing the struggle against terrorism in terms of conventional warfare.[1] As a strategy for actually dealing with terrorism, it leaves much to be desired. However, in this article, I wish to show that “defeating terrorism” is not necessarily the only possible object of such a rhetorical move. This is because constructing a rhetorical war-footing is a sensible strategy if one’s aim is to sanction or legitimise the use of extrajudicial force by state security forces. Specifically, when a government has a policy of classifying terrorists not as criminals, but as “enemy combatants”, then that policy has the effect of allowing the use of military force (as opposed to the justice system) in dealing with them. In the case of the “War on Terror”, as declared by President George W. Bush following the September 11 2001 attacks (9/11), B.M. Leiser plainly states the rationale behind this reclassification:
...the detainees being held at Guantanamo [Sic.] are not awaiting criminal trials. They are considered to be enemy combatants. Consequently, the rules of criminal procedure simply do not apply to them. [2]
There is more than one legal distinction being made here. In a US Department of Defense Memorandum William J. Hynes II defines “enemy combatant” as: ‘an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict.’ [3] This category is then split further into “lawful” and “unlawful” combatants. The former, when captured, become prisoners-of-war (POWs) and are protected by the Third Geneva Convention. The convention states that POWs ‘must at all times be humanely treated’, must be protected ‘particularly against acts of violence and intimidation’, and all ‘measures of reprisal’ against them are prohibited. [4] Unlawful combatants however, do not receive those protections and are instead under the jurisdiction of military law. Each of these conclusions derives from observations by the US Supreme Court in Ex Parte Quirin (1942), a case dealing with German saboteurs during the Second World War, and which now constitutes the principal legal foundation for the treatment of Guantanamo detainees and other suspected terrorists [5]. This established that, in addition to their capture and detention, unlawful combatants were ‘subject to trial and punishment by military tribunals for acts which render their belligerency unlawful’. [6] Following 9/11, the distinction between enemy and unlawful combatant all but disappeared in US military and legal discourse. A key consequence of this was that it allowed the Bush Administration the legal leeway both to detain prisoners indefinitely, and to subject them to treatment far below the standard of human dignity that the Geneva Conventions demand for even those who are not officially prisoners-of-war [7].
We have here a specific case of war-language used with the intention of sanctioning extrajudicial means of dealing with terrorism. Other commentators have picked up on how war-language is used more generally to restrict rights and liberties. In her address to the American Bar Association, former President of Ireland Mary Robinson spoke on the effect of war-language on politics:
European leaders believe that the language of war inflates those who are in fact terrible criminals, through committing acts of terrorism that deliberately kill civilians, and that the context of being ‘at war’ makes it more acceptable to erode standards of civil liberties and human rights. [8]
Although Robinson agrees with and even justifies the war-footing the US set itself upon in response to 9/11, she goes on to warn:
...there are costs to using war terminology in countering terrorism, and those costs can be severe - particularly to credibility and legitimacy in trying to foster democracy and freedom in the world. [9]
Robinson makes sure not to imply that the erosion of civil liberties had been the purpose of the ‘war on terror’ rhetoric, and it is, of course, difficult if not impossible to tell whether these effects were an intended or unintended effect of US policy. For the purposes of this article however, it is not necessary to prove intent. The declaration of the “war'' on terror legitimised the reclassification of terrorist suspects as “enemy combatants” rather than criminals. By doing so, the Bush administration demonstrated how to use language to legitimise the use of extrajudicial force in a Western democracy. Regardless of whether or not this was the administration’s intention, the important thing to note is it worked and could conceivably work for any other state willing to do it. Although there has been no shortage of criticism of the war on terror from nearly every corner of civil society both in the US and the rest of the world, the fact of the matter is that, 18 years and two US presidencies on, there are still at least 40 people being held beyond the reach of the US and international legal system in Guantanamo Bay [10].
In conclusion, if one does not mean to defeat terrorism but instead to use the threat of terrorism to sanction granting extraordinary and extrajudicial powers to government, then the use of ‘war-terminology’ is a sound strategy to legitimise such a move. It is worth pointing out here that the case outlined above is a textbook example of securitisation. If we re-analyse the rhetorical move from criminal to enemy combatant in this theoretical framework, it is clear that the US has been remarkably successful in framing the issue of terrorism as a security threat, therefore ‘requiring emergency measures and justifying actions outside the normal bounds of political procedure.’ [11] By justifying such extraordinary measures in response, the US has effectively taken the issue of terrorism out of the realm of normal politics - a key feature of securitisation theory. This article has demonstrated how easily securitisation can occur even through a simple legal interpretation.
Sources
[1] https://thesecuritydistillery.org/all-articles/on-the-rhetorical-construction-of-the-war-on-terror [Accessed: 16/03/2020]
[2] Leiser, B.M. 'The Catastrophe of September 11 and its Aftermath' in Primoratz, I. (ed.) (2004) Terrorism: The Philosophical Issues. New York: Palgrave Macmillan.
[3] Sciullo, N.J. (2012), "On the Language of (Counter)Terrorism and the Legal Geography of Terror" in Willamette Law Review 48(3) : 317-342.
[4] Third Geneva Convention, Article 14. (1949) Available at: https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.32_GC-III-EN.pdf [Accessed: 16/03/2020]
[5] Sciullo, 2012
[6] Ex Parte Quirin, 317 U.S. 1, 30 (1942) Available at: https://supreme.justia.com/cases/federal/us/317/1/ [Accessed: 16/03/2020]
[7] Halliday, F. (2010), Shocked and awed : how the war on terror and Jihad have changed the English language. London: I.B. Tauris. 67
[8] Robinson, M. (2006), "Law, Language and Principle in the 'War on Terror'" in Human Rights 33(1). 18
[9] Ibid, 22
[10] Savage, C. (2018), 'U.S. Transfers First Guantánamo Detainee Under Trump, Who Vowed to Fill It', The New York Times, May 2nd 2018. Available at: https://www.nytimes.com/2018/05/02/us/politics/guantanamo-detainee-transferred-trump-al-darbi.html [Accessed: 16/03/2020]
[11] Buzan, B., Waever, O. & Wilde, J.d. (1998), Security: a new framework for analysis, Lynne Rienner Pub, Boulder, Colo;London. 24