Power, security, and due process

Criminal justice response to terrorism under Donald Trump.

Other than marking the commencement of his 4-year term, the inauguration of Donald Trump as the 45th President of the United States signaled changes to the United States’ criminal justice response to terrorism, emphasizing security, and not due process.

The nascence of Trump’s contentious politics intervenes in logics with power, security and due process within and outside the United States. The fight against terrorism has become a legitimate ground for human rights violations from placing individuals on lists for sanctions and surveillance without transparent mechanisms to extraordinary renditions, indefinite detention, torture, and targeted killing. Thus, emphasizing security has become the means to obtain power through suppression of rights and ignorance of due process.

The President of the United States is attempting to pave the way to reopen the CIA detention camps and to reauthorize the ‘enhanced interrogation techniques’ that were canceled by Executive Order 13491 issued by the former President Barack Obama. Detention is a legitimate response to domestic, transnational and organized crimes when it is proportional to the offence perpetrated, when the human rights of the perpetrator are respected, and when a fair trial is provided by an independent criminal court. In that case, it follows the due process and it is a tool of the law enforcement model.

However, in cases in which detention is used in order to counter terrorist threats, for instance, the detentions at Guantánamo Bay (Cuba), Bagram Air Force Base (Afghanistan) or Abu Ghraib (Iraq), it contradicts to due process since the detention is not a result of a fair trial and it is not in compliance with the principles of criminal law and human rights law.

Due to the perceived threat that emanates from terrorism, the indefinite detention emphasizes security while considerations regarding due process are ignored, thereby that kind of detention includes deprivation of liberty but without a judicial process. Further, this form of detention puts into question the viability of the rights of detainees such as the right to fair trial under international standards. Moreover, considering the interrogation techniques that have been used at the aforementioned ‘black sites’, this kind of detention was followed by abusive treatment for the purpose of security and intelligence gathering.

Donald Trump is also eager to bring back torture. Torture and ill-treatment are forbidden in international law, regardless of the approach used and regardless of the regime applied. Therefore, under the consideration of due process, there is no legal ground or legitimization of the use of torture and ill-treatment. Nevertheless, the Trump administration is ready to alter the law in order to permit torture. The new president’s nominee for the position of Director of CIA, Mike Pompeo, wrote to the Senate committee: ‘I would want to understand such impediments and whether any recommendations were appropriate for changing current law’.

Providing such statements and backing them up with actions will raise concerns that security concerns might prevail over the prohibition of torture and ill-treatment as peremptory norms. Moreover, these norms are confirmed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that is in power and the Congress cannot alter them.

Nonetheless, the US secretly approved and used coercive methods of interrogation of certain individuals suspected of terrorism even before Donald Trump came to power. For instance, the mastermind of the September 11, 2001, terrorist attacks Khalid Shaykh Muhammad, was waterboarded 183 times in March 2003.

By claiming that it has no treaty obligations with respect to torture and ill-treatment in cases where the security is jeopardized by individuals who are terrorist suspects held in custody, the United States has approved ‘enhanced interrogation techniques’ under the Bush Administration. It will not shy away from doing so under the Trump Administration.

Now, the contentious politics of the new president are on their way to undermine again the international law. Due process means recognition of international treaty law and customary law, and respect for norms that prohibit torture and ill-treatment at any time and in any case, regardless of the threat and the circumstances.

The use of extraordinary rendition that prioritizes security over due process has also been vindicated by Donald Trump in the ‘war on terror’. Victims of extraordinary rendition who are terrorist suspects are transferred to countries in which their human rights might seriously be violated. They are being denied access to any legal process, including the ability to object the decision to transfer them because of the risk of torture. In light of the foregoing, by using this method of transfer of individuals, different violations of human rights emerge as illegal detention, abduction, torture, and ill treatment.

Donald Trump’s new (old) approach towards countering terrorism has several implications that should be considered. His contentious politics intervenes in logics of contemporary conflicts and state-building. Further, the war against Daesh and other terrorist organizations is intertwined with contentious politics as a new momentum of state-building. In other words, not only does the United States make war, but war makes the United States too. What kind of a state will be born from the embracement of this controversial politics regarding detention, torture, ill-treatment, and rendition, is an important question that should be seriously considered.

During his presidential campaign, Donald Trump promised to ‘make America great again’ alluding to the fact that the country needed some sort of makeover. Sidney Tarrow claimed in his book ‘War, States, and Contention’ that the ‘war on terrorism’ gives the state of America extraordinary latitude to restrict citizens’ rights, while also providing the citizens of America with extraordinary incentives and opportunities to fight for their rights.

This inconclusive war against a political tactic such as terrorism expands rights by giving citizens new leverage over their rulers as indispensable warriors, voters, and taxpayers.

Meanwhile, this war legitimizes the United States to suppress human rights through the state of emergency. And the international community must take under serious consideration the way in which the United States’ state of emergency has been projected into the international system. The question is for the purpose of security and more power, are we accepting and acquiescing ‘the dark side of liberal internationalism’?

Power, security, and due process
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Zhuliyan Zhelezov

Zhuliyan has obtained a Master’s degree in International Security and Law from the University of Southern Denmark. He has obtained a ‘Master of Laws’ degree from the University of Sofia ‘St. Kliment Ohridski’. He has specialized in counter-terrorism and international criminal justice at the University of Salford (UK). He has also specializations in international law and international relations from the University of Sofia ‘St. Kliment Ohridski’. He works in the field of anti-money laundering and the prevention of the financing of terrorist organizations. His main interests are in the field of contemporary conflicts: terrorism, counter-terrorism, insurgency, counter-insurgency, and hybrid warfare.
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