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State power beyond the law: The transatlantic fight against human rights by Heiner Busch and Norbert Pütter

01 January 2008

Whilst state executives on this and the other side of the Atlantic incessantly reiterate that international Islamic terrorism poses the gravest threat against democracy and freedom today, it is becoming increasingly clear that it is these very governments that are systematically and lastingly violating human rights and civil liberties.

The new, not only transatlantic, but global fight against terrorism is characterised by three core elements: Firstly, an international surveillance infrastructure is created in its name. Secondly, it is used to justify wars and military operations. And thirdly, the "war on terror" creates instruments that rise above conventional categories. Namely, it creates instruments that no longer serve criminal prosecution or the prevention of threat, but conflate military with police and secret service activities; they stand above the legal order and deny those affected by the war on terror their basic fundamental rights; they exclude the public and the parliaments and, last but not least, they link secret executive practices with a comprehensive repertoire of sanctions.

Citizens are generally understood as "sovereign" in definitions of modern democracies. In states' practices, however, they are treated as the ultimate risk that needs to be reduced by way of far-reaching control mechanisms and data collection. In light of the global flow of people, goods and information, this risk perspective necessitates a synchronised alliance of national and international measures. These are no longer restricted to the exchange of police data or mutual judicial cooperation in criminal cases, which had already lost its judicial character, rather they are being extended with new powers such as common investigation teams and undercover cross-border cooperation. Above and beyond this extension of powers, the war against terror allows for the implementation of measures aimed at controlling the mobility and behaviour of citizens at all times. The retention of telecommunications data, the inclusion of biometric data in passports or the routine exchange of air passenger data, are all elements of the European, or rather, internationally harmonised surveillance structure. (1) The inclusion of biometric data in passports and the routine exchange of air passenger data are not the only examples of EU institutions willingly giving in to US demands and ignoring the protests of EU Member States. In June 2007, the EU granted the US permanent access to information on international financial transactions. Since autumn 2001, the US government has been accessing data collected by the Belgian financial service provider SWIFT (Society for Worldwide Interbank Financial Telecommunication) without an existing agreement.(2) The fact that this practice lacked any form of legal basis and was made public only by chance is symptomatic of the new fight against terror.

The wars that have been waged since 2001 in the name of anti-terrorism more than just violate international law. The progressive militarisation of conflicts is proving ineffective and counter-productive when assessed according to their proclaimed aims. Six years since the start of the war against the Taliban in Afghanistan, they have not been defeated and the Afghan government has lost control of large parts of the country. The cultivation of poppies and opium production has increased significantly. The war against Iraq was justified from the outset with transparent lies; weapons of mass destruction were fabricated, as was the Iraqi government's reputed "support" for al-Qaeda. War and occupation have not "pacified" the country, but left it with an unprecedented and seemingly never-ending wave of attacks, causing suffering, first and foremost for civilians. Religious and ethnic differences have been exacerbated by the conflict. At the same time, the invasion has strengthened the opinions of those who see themselves at war with the Western world. The torture practiced<