The State of Preemption: managing terrorism through counter law
The American response to the terrorist attacks of 9/11 highlighted a trend toward preemptive security that was already under way across Western societies (Agamben 2005; Dershowitz 2006; Ericson 2007). Preemptive security is based on a precautionary logic that normalizes suspicion (see Aradau and van Munster, this volume). There is perpetual vigilance for signs of danger on the assumption that everyone is guilty of criminal intent. There is also a strong urge to criminalize not only those who actually cause harm, but also those merely suspected of being harmful, as well as authorities who are deemed responsible for security failures. Preemptive security requires a radical reconfiguration of law. I call this
reconfiguration ‘‘counter law’’, which takes two forms (Ericson 2007). Counter law I is law against law. New laws are enacted and new uses of existing law are invented to erode or eliminate traditional principles, standards, and procedures of criminal law that get in the way of preempting imagined sources of harm. Counter law II takes the form of surveillant assemblages (Foucault 1977: 221-3; Haggerty and Ericson 2000, 2006). New surveillance infrastructures are developed and new uses of existing surveillance networks are extended that also erode or eliminate traditional principles, standards, and procedures of criminal law that get in the way of preempting imagined sources of harm. The legal fine print and surveillance practices of counter law regimes are
often hidden. However, counter law as a strategy for preemptive security is highly visible in political culture. Central authorities extol the virtues of counter law measures as the only way to preempt dangers and effect security. Counter law is officially expressed as a ‘‘state of exception’’ (Agamben 2005). Normal legal principles, standards, and procedures must be suspended because of a state of emergency, extreme uncertainty, or threat to security with catastrophic potential. The legal order must be broken to save the social order. However, the state of exception is no longer the exception but has become the normal state. ‘‘The declared state of exception has been replaced by an unprecedented generalization of the paradigm of security as
the normal technique of government’’ (Agamben 2005: 87). This is the state of preemption. There is incessant elaboration of laws against law and surveillant assemblages that facilitate preemptive security. This chapter initially considers Jihadist terrorism and the politics of risk
and security surrounding it. It then describes and analyzes the counter law measures that have emerged in the wake of 9/11. The description and analysis show how managing terrorism risk through counter law has further institutionalized the state of preemption, with disturbing consequences for social justice.