Justice as Invisibility: Law, Terror, and Dehumanization

Abstract

This paper summarizes and extends an inquiry set out in a recent work, The Harbinger Theory (Diab 2015), by developing one of its arguments. The book traces the prevalence in North American security discourse since 2001 of a belief in the imminent possibility of further terror on the scale of 9/11 as a rationale for a range of extraordinary counter-terror measures. It also argues that post-9/11 perceptions of terrorism led to a demise in the cultural currency of liberal legality in favour of what the book terms authoritarian legality. The latter framework is marked by law and policy entailing an abandonment of absolute or non-derogable rights (against torture, cruelty), greater state secrecy and surveillance, judicial deference to the expansion of executive discretion, and a lack of accountability for serious violations of human rights. Part II of the paper posits that a further dimension of authoritarian legality, or an underlying principle supporting it, is a broader societal equation of justice with measures that render terrorism offenders invisible including targeted killing, citizenship revocation, and life without parole as a means of denying recognition of their humanity. This denial serves to avoid a conflict that would otherwise arise between a perceived need to suspend earlier limits on the state’s use of force against the individual, in light of the vastly greater threat of terror, and a desire to adhere to legal principles premised on the recognition of individual dignity and equality. By contrast to earlier scholarship in which dehumanization results from racist, imperialist, or religious framings of the war on terror, a case is made here for it being linked primarily to beliefs about the magnitude of the threat of terror. The paper posits the continuing currency of the harbinger theory and authoritarian legality as impediments to reform.