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The fight against terrorism: the rule of uncertainty?

A protest in Toulouse in January 2016 against the state of emergency in France. Gyrostat/Wikimedia, CC BY

On September 25, 2017, yet another antiterrorism bill was put before the French National Assembly. While proposing to end France’s current “state of emergency”, the bill would normalise a certain number of exceptional measures, thereby undermining core democratic principles.

Terrorism, a challenge for democratic societies

The apparent increase in terrorist attacks has captured public imagination, placing rising pressure on the political classes. While attacks are more frequent and damaging in African, Middle-Eastern and Asian countries, the power of images, beamed instantly across Western media, renders their violence inescapable.

Regardless of their individual circumstances, all countries impacted by these attacks have implemented their own policies, aimed at combating “terrorism” – increased surveillance and military arsenals, radicalization prevention programs, and the recruitment of undercover agents.

Yet, increased security measures have gleaned ambivalent, or even counterproductive, results. Ironically, authorities’ preferred methods for combating threats to our democratic institutions undermine the very nature of said institutions’ principles and practices. Reinforcing police powers weakens civil liberties and clouds the democratic transparency in public institutions.

As a result, governments are suffering from a kind of democratic identity crisis: how much can we undermine our democratic principles before they lose all meaning? Liberal, democratic principles are put to the test by the policy choices that arise when trying to effectively combat terrorism.

The bill that is being examined by the French lower house aims to “end the state of emergency” that has been in force since the terrorist attacks of November 13, 2015, in Paris and Saint-Denis. However, it fails to take into account an important lesson derived from the political reaction to 9/11 in America: undermining the rule of law, a fundamental notion in our modern democracies, is no guarantee of safety. On the contrary, weakening the institutional and symbolic operation of the rule of law gives rise to new risks, and therefore increased insecurity.

Politics in the age of uncertainty

The “fight against terrorism” is unique in that it requires us to find and conquer something that is unspecified, unidentified and may not even exist. More than anything else, terrorism, by its very nature, thrives on unease, anxiety and fear. The terror arises from an actual attack, but the threat of a future attack, whose form we can only imagine, remains. While an imminent terror attack is a question of fact and reality, its political impact lies in the imagination, in the power of uncertainty, which creates fear.

This is why the shock that descended upon France after the 2015 terrorist attacks helped to justify and even legitimize the creation of a state of exception within French society. If adopted this week as it stands, the bill before the assembly will put an end to it, but it will also integrate its chief measures into standard law. By normalizing this weakening of the rule of law, the bill would constitute a strategic step towards normalizing uncertainty.

Based on the idea that everything is uncertain, the proposed law seeks to arm authorities against the unknown, the unforeseen and the unpredictable. This is a new form of politics, the politics of suspicion, fear, assumption and mistrust.

Threats to the rule of law

Political theory tells us that the declaration of a state of emergency is a step towards questioning the legitimacy of democracy. Only the Head of State has the authority to declare it. A state of emergency devolves the State into a kind of democratic sub-jurisdiction in which legislative and judicial powers are subject to executive power (typically, only for a given period of time).

This clearly implies the existence of a particular crisis in the wake of which political authorities are temporarily exempt from certain democratic safeguards, normally guaranteed by the rule of law. Let us recall that the rule of law refers to the hierarchical structure of the legal system, and that government bodies must conform to the law when making political decisions in the name of the people. It is what guards the ever-fragile balance between freedom and security in a democratic State.

Integrating measures from the state of emergency into standard law and sacrificing a little “freedom” in the name of “security” destabilises the rule of law, creating insecurity. If, as Aeschylus said, truth is the first casualty of war, the same is true for the state of emergency, only doubly so. The state of emergency also forces governments to break the social contract guaranteeing democratic transparency, yet it is the only political foundation that shields citizens from danger, even in these uncertain times.

Responding to the “terrorist risk”

Democratic systems are a form of institutional structure. Traditionally, they are both philosophically and legally bound to protect the safety of citizens. Yet, increasing security measures and reducing their transparency undermines – or, at the very least, threatens – the democratic nature of governments.

Several measures in the bill currently being discussed by French MPs will lead to reduced transparency when it comes to the management of internal security. It is also worth noting that many decisions will rest on the more-or-less arbitrary choices of prefects (France’s state representatives in a given region), given that the text is at times deliberately vague regarding the appropriate grounds for searches, house arrests and even the closure of “places of worship”. Previously, by virtue of the rule of law, judicial authority would have been required beforehand.

With this new bill, the government appears willing to exceed its original mandate by moving towards a system in which they also control contingencies liable to create risk. The real danger then becomes the creation a kind of quixotic society where citizens are mobilized to tilt at windmills.

By targeting anyone and everyone, terrorism aims to damage liberal society (in the philosophical sense), which defines the rights and freedoms intrinsic to community life. By removing the principles and practices of this society in the name of the “fight against terrorism” we run the risk of letting the terrorists win. Let us never forget that democracy – like life itself – is fragile.

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Translated from the French by Alice Heathwood for Fast for Word.

This article was originally published in French

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