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Risk before Justice: When the Law Contests Its Own Suspension

  • LOUISE AMOORE
Abstract

Contemporary security practices pose a particular paradox in the relationship between law and norm. On the one hand, the institution of risk practices in advance of, and in place of, juridical decisions appears to have become the technical resolution of choice to the politics of targeted security in the ‘war on terror’. The risk calculus makes possible an array of interventions – from detention, deportation, or ‘secondary’ security to asset freezing and ‘blacklisting’ – that operate in place of, and in advance of, the legal thresholds of evidence and decision. And yet, this article demonstrates, it is not the case that law recedes as risk advances, but rather that law potentially both authorizes and contests specific modes of risk management. As risk practices in the war on terror operate on and through a distinctive and novel terrain of the uncertain future, the capacity of juridical intervention to contest the exposure of people to dehumanizing technologies itself faces new potentials and limits.

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1 M. Foucault, Security, Territory, Population: Lectures at the Collège de France 1977–1978, trans. G. Burchell (2007), 99.

2 M. Chertoff, ‘Remarks to European Parliament's Committee on Justice, Civil Liberties and Home Affairs’, US Department of Homeland Security, 15 May 2007, available at www.dhs.gov/xnews/speeches/sp_1180627041914.sthm.

3 In May 2006 the European Court of Justice (ECJ) ruled that ‘the Commission Decision of 14 May 2004 on the adequate protection of personal data contained in the Passenger Name Record of air passengers transferred to the US Bureau of Customs and Border Protection be annulled’ (Case 318/04, European Parliament v. Commission of the European Communities), and that ‘the Council decision of 17 May 2004 on the conclusion of an agreement between the European Community and the United States on the transfer and processing of PNR data be annulled’ (Case C-317/04, European Parliament v. Council of the European Union). The Parliament had sought to challenge the extradition of personal data on European citizens under Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR): ‘everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right, except such as is necessary in a democratic society in the interests of national security.’ The ECJ did not uphold the infringement of Art. 8, basing its judgment instead on the inadequate legal basis in the European Treaty.

4 M. Chertoff, ‘US Seeks Closing of Visa Loophole for Britons’, New York Times, 2 May 2007, 5.

5 M. Chertoff, ‘Remarks by Secretary Michael Chertoff to the Johns Hopkins University Paul H. Nitze School of Advanced International Studies’, 3 May 2007, available at www.dhs.gov/xnews/speeches/sp_1178288606838.shtm (last visited May 2007).

7 Department of Homeland Security, ‘Memorandum of understanding regarding the US Visa Waiver Program and enhanced security measures’ (2008).

8 Ibid., at 3.

9 G. Agamben, State of Exception (2005), 37.

10 Interview with Marc Rotenberg, director of the Electronic Privacy Information Center and senior counsel, Washington, DC, 30 October 2007. Rotenberg has testified worldwide on the effects of national security exemptions to laws governing privacy, surveillance, and the use of electronic data. He testified before the 9/11 Commission on ‘Security and Liberty: Protecting Privacy, Preventing Terrorism’.

11 R. Ericson, Crime in an Insecure World (2007), 24.

12 Agamben, supra note 9, at 38.

13 See Amoore, L. and de Goede, M., ‘Transactions after 9/11: The Banal Face of the Preemptive Strike’, (2008) 33 (2)Transactions of the Institute of British Geographers 173; Van Munster, R., ‘The War on Terrorism: When the Exception Becomes the Rule’, (2004) 17 International Journal for the Semiotics of Law 141; Massumi, B., ‘Potential Politics and the Primacy of Preemption’, (2007) 10 (2)Theory & Event, available at http://muse.jhu.edu/login?uri=/journals/theory_and_event/v010/10.2massumi.html.

14 Kessler, O. and Werner, W., ‘Extrajudicial Killing as Risk Management’, (2008) 39 Security Dialogue 289.

15 Valverde, M. and Rose, N., ‘Governed by Law?’, (1998) 7 Social and Legal Studies 541, at 543.

16 See L. Daston, Classical Probability in the Enlightenment (1988); G. Clark, Betting on Lives: The Culture of Life Insurance in England (1999).

17 F. Ewald, ‘Insurance and Risk’, in G. Burchell, C. Gordon, and P. Miller (eds.), The Foucault Effect: Studies in Governmentality (1991).

18 Ewald, F., ‘Norms, Discipline, and the Law’, (1990) 30 Representations 138, at 142.

19 B. Adam and J. van Loon, ‘Introduction’, in B. Adam and J. van Loon (eds.), The Risk Society and Beyond: Critical Issues for Social Theory (2000), 2; O'Malley, P., ‘Introduction: Configurations of Risk’, (2000) 29 Economy and Society 457, at 458.

20 Ewald, supra note 18, at 142.

21 U. Beck, World Risk Society (1999), 4. See also U. Beck, ‘Risk Society Revisited: Theory, Politics and Research Programmes’, in B. Adam, U. Beck, and J. van Loon (eds.), The Risk Society and Beyond: Critical Issues for Social Theory (2000).

22 Ericson, R. and Doyle, A., ‘Catastrophe Risk, Insurance and Terrorism’, (2004) 33 (2)Economy and Society 135, at 141.

23 Ewald, supra note 18, at 199.

24 L. Amoore and M. de Goede, ‘Governing by Risk in the War on Terror’, in L. Amoore and M. de Goede (eds.), Risk and the War on Terror (2008).

25 R. Suskind, The One Percent Doctrine (2006), 14.

26 F. Ewald, ‘The Return of Descartes' Malicious Demon: An Outline of a Philosophy of Precaution’, in T. Baker and J. Simon (eds.), Embracing Risk (2002), 294.

27 Foucault, supra note 1, at 65.

28 Ibid., at 63.

29 Agamben, supra note 9, at 39.

30 F. Johns, ‘Guantánamo Bay and the Annihilation of Exception’, (2005) 16 EJIL 613, at 617.

31 J. Butler, Precarious Life: The Powers of Mourning and Violence (2004); D. Bigo, Illiberal Practices of Liberal Regimes: The Insecurity Games (2006).

32 See Amoore, L., ‘Biometric Borders: Governing Mobilities in the War on Terror’, (2006) 25 (3)Political Geography 336; Salter, M., ‘Passports, Mobility and Security: How Smart Can the Border Be?’, (2004) 5 International Studies Perspectives 69.

33 Werner, W., ‘Responding to the Undesired State Responsibility, Risk Management and Precaution’, (2005) 36 Netherlands Yearbook of International Law 57.

34 Ewald, supra note 18, at 155.

35 Foucault, supra note 1, at 63.

36 Much of the legal advocacy work of organizations such as the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF) and the UK's Liberty has coalesced around how citizens can know which law, norm, or rule applies in public spaces. As subjects of new modes of pre-emptive risk management, as Barry Steinhardt of the ACLU has it, ‘even the option to moderate or modify their behaviour is no longer open, they cannot know what is to be judged suspicious and scored accordingly’. The disciplinary deployment of norm, then, geared as it is to the governing of the self, appears here to be displaced by more mobile and less visible modes of norm and anomaly.

37 Douzinas, C., ‘Identity, Recognition, Rights, or What Hegel Can Teach Us about Human Rights’, (2002) 29 Journal of Law and Society 379.

38 Department of Homeland Security, ‘Survey of DHS Data Mining Activities’, (2006), 9.

39 D. Rumsfeld, ‘Press conference by US Secretary of Defence Donald Rumsfeld’, NATO, Brussels, 6–7 June 2002, available at www.nato.int/docu/speech/2002/s020606g.htm (last visited April 2007).

40 B. Steinhardt, ‘The Automated Targeting System – A Violation of American Law, the US–EU PNR Agreement and Basic Human Rights’, presented to European Parliament, Brussels, 27 March 2007.

41 Interview with Melissa Ngo, Director of the Identification and Surveillance Project, Electronic Privacy Information Center (EPIC), Washington, DC, 30 October 2007.

42 Interview with Marc Rotenberg, supra note 10.

43 de Goede, M., ‘The Politics of Preemption and the War on Terror in Europe’, (2008) 14 European Journal of International Relations 161.

44 B. Harcourt, Against Prediction: Profiling, Policing and Punishing in an Actuarial Age (2007), 228.

45 S. Baker, Remarks, Center for Strategic and International Studies, Washington, 19 December 2006 available at www.dhs.gov/xnews/speeches/sp_1166557969765.shtm (last visited 8 October 2007).

46 It is the profiling and targeting potential of integrated databases that is of key concern, for example, to the UK's human rights group Liberty: ‘Of course once you get into individual profiling, what we mean in this political and current environment that we're speaking when we're talking about profiling, we're talking about racial profiling. My concern is that eventually when they've sold these systems on, that there will be the only place there is to go’ (Gareth Crossman, policy director and counsel, Liberty, interviewed 2 September 2007).

47 Baker, supra note 45.

48 Valverde and Rose, supra note 15, at 548.

49 See E. Morgan, ‘New Evidence: The Aesthetics of International Law’, (2005) 18 LJIL 163.

50 M. Foucault, Abnormal: Lectures at the Collège de France 1974–1975, trans. G. Burchell (2003), 23.

51 C. Douzinas, ‘The Legality of the Image’, (2000) 63 Modern Law Review 830.

52 M. Chertoff, ‘Remarks to European Parliament's Committee on Justice, Civil Liberties and Home Affairs’, 15 May 2007.

53 Interview with Rotenberg, supra note 10.

54 Isin, E., ‘The Neurotic Citizen’, (2004) 8 Citizenship Studies 232.

55 Douzinas, supra note 37, at 397.

56 Ibid., at 399.

57 Ibid., at 398.

58 European Parliament, ‘Findings of the Article 29 Data Protection Working Party of the European Parliament's Committee on Civil Liberties, Justice and Home Affairs’, Brussels, 26 March 2007.

59 Interview with Lillie Coney, senior counsel and deputy director, EPIC, Washington, DC, 31 October 2007.

60 Douzinas, supra note 37, at 398.

61 J. Derrida, ‘Autoimmunity: Real and Symbolic Suicides’, in G. Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (2003), 132.

62 Ibid., at 129.

63 E. Guild, ‘The Foreigner in the Security Continuum: Judicial Resistance in the United Kingdom’, in P. K. Rajaram and C. Grundy-Warr (eds.), Borderscapes: Hidden Geographies at Territory's Edge (2007).

64 W. Connolly, Why I Am Not a Secularist (1999), 63.

* Louise Amoore is Reader in Political Geography, Department of Geography, University of Durham. She leads the ‘Contested Borders’ and ‘Data Wars’ projects, funded by the UK Economic and Social Research Council (ESRC).

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
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