The state of exception, as originally theorized by Carl Schmitt, argues that sovereign power is defined by the ability to declare a state of emergency and transcend the rule of law. According to Giorgio Agamben, the suspension of the law is intrinsically linked to the exercise of sovereignty and essential to the legal order itself. Rather than a rare occurrence, extra-legal violence is a habitual and normal aspect of state power.
In many respects, the war on terror spurred by the 9/11 attacks can be considered a global state of exception. Proponents of anti-terrorist laws often argue that the suspension of civil liberties and due process is justified in the name of security and a necessary evil to combat an extraordinary form of violence unleashed against civilians. Yet the governments who implement these laws have come to share many of the same tactics and discourses as the non-state actors they seek to combat. Anti-terrorist agencies frequently circumvent territorial borders; operate outside the conventions of state sovereignty and international law; and make reference to a spectral, borderless war “shorn,” as Jeremy Prestholdt argues, “of political or geographical coordinates.”
Anti-terrorist laws have become part of a global set of governing strategies. Countries across the world have adopted legislation modeled on those set in place by the US after 9/11, such as the Authorization for Use of Military Force. They have also established anti-terrorist units, many of which enjoy the backing of Western governments.
Kenya is one such country. After members of Egyptian Islamic Jihad and al-Qaeda launched devastating attacks on the U.S. embassies in Kenya and Tanzania in 1998, the Kenyan government created the Anti-Terrorism Police Unit (ATPU). The ATPU receives funding from the U.S. and U.K. and acts upon intelligence reports from Israeli and British officials.
While extrajudicial killing and police abuse are familiar problems that have long preceded the 1998 embassy bombings and the 2003 establishment of the ATPU, the global war on terror has empowered Kenyan officials in new ways. It has enabled them to justify the profiling of Somalis and Muslims and legitimize the suspension of civil rights. It has also given them access to new forms of Western funding and political and military resources. Kenya, for example, has become an important ally of the US in its covert campaigns in neighboring Somalia.
As Human Rights Watch recently noted, the ATPU frequently violates both Kenyan and international law. Operating in the shadows, it is known to arbitrarily detain and unlawfully deport Somali refugees. It has also carried out “enforced disappearances” and assassinations against suspected terrorists and Muslims clerics. In some cases, those killed did little more than publicly express support for factions in Somalia that are fighting against foreign intervention. The ATPU makes little attempt to parse the (albeit blurry) line between “indirect support” for terrorist activities and freedom of political and religious expression. Al-Jazeera recently released a documentary about abuses by the ATPU and other Kenyan security forces.
The globalization of anti-terrorist legislation has also allowed states to return to more authoritarian forms of governance. Just days after the release of the al-Jazeera documentary, the Kenyan parliament passed a tough new set of “anti-terror” laws. Among many provisions, it enables the police to hold “terror suspects” for up to 360 days without trial; expands the government’s power to tap phones; requires that anyone intending to hold a public rally get approval from the Cabinet Secretary in Charge of Security; and demands that journalists obtain police permission or face potential jail time if they seek to report on terrorist or security issues. Domestic and international critics have argued that these laws will allow the Uhuru Kenyatta government to roll back the civil rights gains of the new constitution. There is already evidence that the new legislation is being used to infringe on press freedom. It may very well become a means of punishing members of the opposition.
New anti-terrorist and security laws have also had important ramifications for the international regime of human rights. Since the 1990s, “human rights,” as Belinda Cooper notes, “have come to dominate international discourse.” Attempts to universalize these norms are not without their critics. Yet even the most cynical observers typically recognize the rhetorical and ideological importance of human rights, which, for all of its flaws, remains a powerful international language for critiquing the excesses and abuses of government.
The post-Cold War era has seen the proliferation of both human rights and anti-terrorist legislation. Often, they are simultaneously promoted by the same government agencies and transnational bodies. After President Uhuru Kenyatta signed the new anti-terror laws, a spokeswoman for the US State Department expressed concerns that the Kenyan government would undermine constitutional rights, “limit freedom of assembly and media,” and hinder “access to asylum for refugees.” The irony was not lost on Kenyan authorities. Munyori Buku, a senior Kenyan official, rejoined by highlighting US double-standards: “Our law is better than the American Patriot and Homeland Security Acts that give rogue powers to security agencies,” he retorted, and “What is more, Kenya has no Guantanamo Bay!” (See here for his full statement). The global war on terror has allowed for an array of “exceptions” to be made, which have enabled governments both within and outside the West to exclude certain groups of people from the regime of human rights.
For those concerned with the globalization of anti-terror legislation, it is not enough, as Michelle Farrell argues, to simply reiterate “that ‘violations of law are taking place. One must instead “inquire into the structure of the state of exception that allows such violations to take place.” Critics should question the efficacy of anti-terrorist operations; the dubious means by which certain groups are constructed as “security threats;” and the underlying fear and political misdirection that has empowered anti-terrorist agencies. In addition, it is important to show (as in the case of Kenya) how easily “states of exception” can become permanent parts of the legal order and a means for the state to consolidate power and roll back civil liberties.