The invisible enemy and the dangers of counterterrorism

Terrorism is a word that dates back to the French Revolution, but governments only formally started responding to terrorist threats in the form of counterterrorism units in the 1970s. The first unit was created in Ireland, for the purposes of infiltrating undercover extremist groups during The Troubles. Since then, both terrorism and counterterrorism have evolved, alongside the state’s response to the perceived threats to the security of their citizens.

One of the ways for a government to deal with terrorism is through the law, as it gives the police and military the powers to investigate and hopefully stop any terrorist plans to hurt a population. The best example of states reacting to a terrorist attack through law is the aftermath of 9/11, when the twin towers in New York City were brought down by Al Qaeda. The USA’s president at the time, George W. Bush, declared the “war on terror” and by doing so, set the scene for a war-like approach to counterterrorism. Such an approach can easily be used as justification for actions that are not accepted in common everyday acts by the government (torture, military trials, no due process…) and the lack of respect of human rights in the treatment of terrorists can potentially even worsen the situation.

The bigger issue in tackling terrorism and counterterrorism, apart from the safety and security of human lives, is the incredibly fine line that democratic countries have to walk. Countries based on democratic principles such as liberty and freedom of expression are often the target of terrorists because of their values and principles, yet for these states to be able to protect its citizens and ensure their national security they must respond in an adequate manner to the threats - in many cases, this has manifested itself in the erosion of privacy and liberty of many of their nationals. Democracy is based on certain basic freedoms, but these freedoms are restricted in order to protect national security which itself partly ensures them. As seen in the wake of 9/11, governments’ reactions to emergency situations such as terrorist attacks often involve the (ab)use of powers to curb citizens’ freedoms.

In Europe, there was a giant leap forward in terms of policies and legislation introduced after the twin towers attack. This accelerated pace, which can be found in every country after a terrorist attack, often comes at the expense of human rights and freedoms, including privacy. Not only was Europe shocked by the 2001 attacks, but it itself was also the victim a few years later in the Madrid and London bombings in 2004 and 2005 respectively. Governments often rely on the justification that terrorism threatens not only lives but the values and freedoms that the country and its democracy are based on. To quote the British Home Secretary after the Madrid terrorist attacks, “… the norms of prosecution and punishment no longer apply.” This approach is not as extreme as the war-framing found in the USA’s counterterrorism view, but the result is the same.

Security and safety are touted as the end goal of actions that infringe upon citizens’ rights, yet it is worth pausing to think of how to define security. I take the view that security is the absence of threats, be they to your life, property or democracy. If the government’s goal is the absence of terrorist threats, this means that any counterterrorism legislation should be thought out and drafted with the intention of this law being applicable at all times. This also entails that freedoms and liberties should be protected and not restricted by these laws, as otherwise the state stops being a democracy.

Yet, as explained above, countries usually create new laws against counterterrorism in the aftermath of an attack when feelings of fear and tension are still high. The law that will be enacted, however, is there to stay for an indefinite amount of time. As seen with the anti-terrorism rules introduced in Northern Ireland against the IRA or in Germany against the Red Army Faction, laws that are introduced as temporary are often there to stay, as who is to say that another terrorist attack will not happen tomorrow?

Example at hand: France. After the Bataclan attacks in Paris on the 13 November 2015 which resulted in the death of 130 people, a national state of emergency was declared. The laws for this specific situation already existed, and as an emergency is meant to be short-lived as it requires immediate attention, the state of emergency is meant to last 12 days. However, and this is where the state’s abuse of power comes onto the scene when it comes to counterterrorism, the state of emergency in France was extended 6 times by the French parliament. In total, France was under a state of emergency for approximately two years.

Terrorist attacks are such a terrifying and fear-instilling event due to the gruesome images they produce and their seemingly random occurrence, yet this fear can then be prolonged by counterterrorism rhetoric, keeping the sense of fear and urgency of response high in citizens. This allows a state to keep justifying the measures in place, which in itself is an indication to the citizens that there is still something to fear.

The only reason the state of emergency in France finally ended was because of the new counterterrorism laws approved by the parliament which entered into force on November 1st, 2017 (a day after the state of emergency expired). These new laws are essentially just a copy and paste of the extended powers of the police and military under the state of emergency. The wording is vague, arbitrary and has been criticized by several human rights groups as overall unnecessarily restrictive of liberty and other rights meant to be safeguarded under the constitution and European Convention on Human Rights.

Does ensuring the security of citizens in a democratic state necessarily entail or justify the infringement of civil liberties? Most states’ counterterrorism laws, France included, will point to yes yet the assumptions they are based on are dubious. The threat of terrorism, as opposed to any other type of threat to the security of a country, is often highly mediatized and fear-inducing for the reasons explained above. It is however assumed that this threat is more important and deadly than most others, yet this is simply untrue.

In conclusion, these considerations make it worth asking yourself who has a greater impact on your freedom, peace of mind and privacy?

Trump's trial: an overview of the U.S. presidential impeachment proceedings

If you follow the news, you have undoubtedly heard about the trial that the U.S. president Donald Trump is currently facing. This trial is the result of an impeachment procedure, a process that has only previously happened twice in America. While many of you are aware that this trial might ultimately lead to Trump being removed from office if he is found guilty of the charges he is facing, you might wonder how the proceedings are actually conducted in order to remove a president from their function and how come none of the previous impeachments introduced were successful. Today's article will try to shed the light on those questions, in order to provide you with a clearer and more accurate picture of what is currently going on in the U.S.

According to Article II (4) of the U.S. Constitution, an impeachment procedure is the only way to remove the President (or other executive officers such as judges and cabinet members) from office in the course of their mandate. Such a process may only happen if the official is suspected of "treason, bribery or other high crimes and misdemeanors." The first two offenses are pretty straightforward: treason refers to helping the enemies of the United States, while bribery is defined as taking money or gifts in exchange for a political favour. The difficulty lies in the "other high crimes and misdemeanors" part of the article. Indeed, those terms are not defined in the Constitution, but are left open to interpretation by Congress. In reality, it is specifically the vagueness of those words which posed a problem in the previous presidential impeachment proceedings of Andrew Johnson, Bill Clinton, and Richard Nixon. In each impeachment proceedings, the central legal question to be resolved was whether the actions of which the Presidents were accused of had to be considered as "other high crimes and misdemeanors" and thus, should be considered as legitimate grounds of justification for the procedure to be introduced. In short, Andrew Johnson was charged with 11 articles of impeachment in 1868 but was acquitted the same year as the conviction failed by (only!) one vote. In 1998, Bill Clinton was charged with two articles of impeachment (remember the sexual harassment' scandal he was associated with? Well yes, this was brought to Court!) but was acquitted in 1999 as even a simple majority of the votes was not obtained for any of the charges. The Nixon case is also of interest here, as an impeachment procedure was introduced against him in 1973, but the impeachment in this case was so likely to succeed that he himself resigned from office in 1974.

Well, this little historical overview already shows that it is not an easy task to dismiss a president… But why is that so hard? The answer can be summarized as follow: an impeachment procedure is not a criminal process, but a truly political one.

As a reminder, the United States of America is a federal system, comprising a central authority and fifty constituent States. All the States have their own Constitution, meaning that they all have their own State parliament and Court system, while the federal character of the U.S. is reflected in the three branches (the legislature, the executive and the judiciary) of the central government. With regard to the federal legislature, it operates through a bicameral parliament, referred to as "the Congress." Congress' lower chamber is the House of Representatives and they represent the people of the U.S. The upper chamber, the Senate, represents the constituent States of the U.S. and each State (irrespective of size) is represented by two senators in Congress. The Senate has significant prerogatives in the federal system of the U.S: for example, it must *always* give its consent to pass federal legislation and it cannot be overruled by the House of Representatives.

Coming back to the impeachment process, the procedure all begins in the House of Representatives (Art. I (2) U.S. Constitution). It is therefore solely within the hands of the lower chamber of the American Congress that lies the power to initiate such a procedure. Any member of the HoR may suggest the launching of the impeachment process and it is then up to the speaker of the HoR (the leader to the majority party) to decide whether to proceed with an impeachment inquiry conducted by a House committee. If it does, the House Judiciary Committee has to determine the existence of grounds for impeachment. If it does find such grounds, the list of charges drafted against the President will be set as "articles of impeachment." Those articles must then be voted on individually by the full HoR in order to pass to the next stage. As only a simple majority of the votes (more than half of the total) is needed in order for an article of impeachment to be presented to the Senate, the first stage does not usually cause any trouble in the impeachment process.

The second stage is therefore only concerned with those articles that have been approved by the lower chamber of Congress. It is at this point that the Senate has to try the impeachment in a similar fashion as a court trial, but with the proceedings presided by the Chief Justice of the Supreme Court and with the Senate members acting as a jury (Art. I (3) U.S. Constitution). Apart from that, the President has the same defence rights as any other alleged offenders. In any impeachment cases, a guilty verdict requires a two-thirds majority of the Senate.

With this brief explanation in mind, let us take you back to Trump's case. Trump's articles of impeachments (those that have been approved by a simple majority vote in the House of Representatives) are respectively abuse of power and obstruction of Congress. The first one is related to Trump being accused of seeking help from Ukraine's government in order to get himself re-elected (for more information about this drama, here is a summary of the story. The second article (obstruction of Congress) relates to the White House refusal to allow staff to testify at the first impeachment hearings last year. It is significant to highlight that those charges were approved by the House of Representatives, which is led by the democratic party or, in other words, Trump's opponents. It is therefore not surprising that the lower chamber of the Congress, from a political point of view, ought to remove Trump from his presidential function. However, while the democratic leaders of the HoR voted on the two articles in December 2019, the case was then brought to the Senate for trial. But guess who holds the Senate majority of seats? The Republican party, which is Trump's party! Indeed, Republicans have a majority of 53 out of 100 seats in the upper chamber. As a two-third majority of votes, which in the Senate means 67 votes out of 100, is needed to found Trump guilty and to ultimately remove him from office, it appears doubtful that such a number will be attained. As seen before in history and repeating right now, impeachment processes are much more political than they are legal and the 53 Republican senators are expected to support their President and vote against the conviction. As 67 votes are required, that means that 34 out of 54 Republicans' votes are needed in addition to the 43 Democrats' voices in order to convict Trump. Do you think it is credible that suddenly the Republicans will turn their backs on their leader? In our opinion, following the scheme of his predecessors Johnson and Clinton, Trump will be acquitted, and that is how the fourth presidential impeachment process in the U.S. will end up repeating history.

Feel free to comment and share your thoughts about this topic in the comment section, and keep an eye on the news as the trial may likely end in the following days!

Law and Ethics

Should euthanasia be legalized? Should abortion be made legal? Should ecocide be criminalized? Should half of the world’s wealth owned by 1 percent of the world population be distributed? Some of you might believe the answers to these questions are evident. Those very controversial matters can be argued in both ways as the answers to these questions are dependent on the values of each individual and is thus subjective.

Why is it that 5% of women in reproductive age live in countries that prohibit abortion altogether and 36% in countries that allow abortion on request (varies on the gestational week). These statistics show a difference in opinion regarding the morality of abortion all around the world. For more interesting insights about this topic, this website is ideal. Ethical convictions are, amongst other factors, probably why our world is not settled on abortion. Whenever a law is being proposed, drafted and voted, the debate all boils down to ethical preferences. Ethics in the legal context helps the legislator to find the answer to “What considerations make this law good?” and “How should we go about legislating in a morally good manner?” These questions are all the more important in the legal context as law objectifies judgments of right and wrong, making them no longer purely matters of opinion. This paper will explain the essence of the utilitarian theory of ethics and Kantian ethics.

Utilitarian theories of ethics are consequentialist moral theories, which means that the assessment of the rightfulness of law is based on the consequences resulting from the law. Jeremy Bentham (1791-1831) a proponent of this approach, believed that only two fundamental consequences result from an action; pleasure and pain. From this, Bentham built a criterion to evaluate the rightfulness of an action; utility. Utility helps to evaluate the tendency to contribute to the general happiness of the community the action should benefit. Utility aims at maximizing the overall good, not only the good of the moral agent. When the parliament votes a law, it will look at the utility resulting from the law, adding up the pleasure and subtracting the pain resulting from it. The question resulting from this is; how to measure pain and pleasure? Bentham set 7 parameters to be taken into consideration when measuring it; 1) Intensity, 2) certainty (certainty that if x is enforced y will result), 3) duration, 4) fecundity (if x is enforced, it will result in further other pleasure), 5) nearness (how soon the benefits will result after completing the action), 6) purity (how/is the pleasure ‘contaminated’ by pain?) 7) extend (how many people will benefit from the action). Bentham uses these factors to characterize pleasure, measure it and then add up pleasure and subtract pain resulting form every moral decision in order to quantify happiness and thereby assessing the utility of the action to determine whether the consequences of it are morally wrong. Although his work will not be dived into for the sake of clarity, it must be born in mind the John Stuart Mill, Bentham’s student, considerably contributed to his professor’s theory of Utilitarianism.

Classical Utilitarianism as proposed by Bentham, was highly criticized by Contemporary Consequentialists. The way happiness is being calculated fails to align with retributive (distribution of reward and punishment) and distributive justice (distribution of benefits ex: health benefits and taxation). Here is an illustration of utilitarian theory’s flaws; in a world where a rich minority is very rich, thereby scoring very high in happiness (scoring 100 units of happiness each) and poor majority is average poor (30 units of happiness), is worth more utility than a world where everyone experiences 40 units worth of happiness. John Rawls noticed this nonegalitarian tendency in Bentham’s Utilitarian theory and argued that Classical Utilitarianism fails to treat persons as individuals but ends themselves. He therefore concluded that inequalities can only be justified if it benefits the worst-off (the most disadvantaged ones without the law) in society.

The issue pointed out by Rawls could not have been encountered in a Kantian/deontological theory of moral ethics, since the assessment of moral rightfulness is not consequentialist in deontological theories. In this theory, the reason for the action alone lays down the moral.

Any reason underlining actions must be led by goodwill, acting from duty. Kant contrasts goodwill with self-interested-deed which has no moral worth. To distinguish a self-interested deed from a moral action, Kant poses the following question “What drives the person to act in a particular way?” According to Kant, a person acting out of desire/duty to perform a good deed acts in line with the moral law. To understand what moral law is, law must be dived into a distinction Kant established, namely between hypothetical and categorical imperative (command, order). A hypothetical imperative is a prerequisite that must be met for the sole purpose to satisfy a certain desire. The imperative is conditional to the wish to fulfill the desire. For example, you must go to the doctor only if you desire to get cured. A categorical imperative must always be met. A categorical imperative is always binding, it is unconditional because its applicability is not conditional to the will to satisfy a desire. Acting in line with moral law is acting in line with categorical imperatives. To know whether an action is good it must be in line with the categorical imperative, but when is that the case? When does one act in such a way? On the one hand, Kant explained that when in a dilemma, one should ask oneself if one would like for this maxim to become a universal law. On the other, it must be born in mind that humanity should be treated as an end and not simply as mean. The latter moral rule entails that a human being can be a mean, but to not be reduced to a mean it must be treated like an autonomous, rational human being. When legislating, Kant would advocate for a law that would be applicable as if it were universal and that treats the persons bound by the law as an end and not simply reduced to a mean.

Although these theories differ in essence, the same conclusions can be reached through a different reasoning.