Commentary: War on Terror Is a Strategy to Criminalize Dissent

Nov. 12, 2006

The idea of terrorism is extended to several forms of social fight and protest. Dissident political and trade union opinions become criminalized. An environment movement such as Greenpeace or animal rights activist is even prosecuted as terrorist in some countries. Lawyer Raf Jespers of the Progressive Lawyers Network, Belgium, made these arguments during a forum of international lawyers in Davao City last month.

The attacks in New York, London and Madrid were the signal for the U.S. and Europe to curtail without scruples, the fundamental rights of its citizens. Under the banner of the war on terror, they have taken measures which up to a certain point, can be compared to the fascization of Europe in the 1930s under Hitler and Mussolini. The war on terror starts long before 9/11; but after 9/11 it became accelerated and did not stop just at today. A new historical period of repression was started.

Terrorism has to be combated; innocent citizens have to be protected.

The traditional judicial definition of terrorism is the use of organized violence against civilians.

There is no question that a state should arm itself against terror deeds like those from Al-Qaeda. These blind extreme right and fascist terror actions do not deserve our understanding. The victims of these actions are the innocent persons in the streets of New York, London, Madrid and Mumbai. So too are the Iraqi people, who are victims of the unlawful occupation in Iraq by the U.S. and Great Britain. This state terrorism also does not deserve any understanding. These two forms of terrorism are each others breeding grounds. Without Al Qaeda, Bush would have had a more difficult time invading Iraq and taking drastic measures against fundamental rights such as in the Patriot Act. The invasion of Iraq and the terror of the United States against the people became the pretext for all sorts of fundamentalists to meddle in the Iraqi quagmire.

9/11 is the beginning of a new era of war on civil liberties

The U.S. is in the world arena without doubt the engine and leading power for the so-called anti-terrorism measures. All violators of human rights are justified with their argument that they are necessary in the fight against terror. Imperialist states and their allies have in the course of history developed and brought to perfection their state system to break the resistance of the peoples against injustice and oppression.

The measures taken in the past five years mean a historical modification in the field of expansion of the apparatus to impose or preserve worldwide the power of the U.S.-imperium. That imperium has been threatened indeed by the rise of the developing countries: Brazil, Russia, India and China. By 2040, those countries will have left the old industrial countries (U.S., Japan, Europe) economically behind them.

We must be aware that the measures against terror mean a new era of repression.

After the second world war there was an enormous extension worldwide of fundamental rights as a result of the victory against fascism in Europe and Japan and under the influence of the rise of socialism and anti-olonialism of which peoples and citizens could enjoy.

There was the establishment of the United Nations Organization which in its charter established the principle of the prohibition on war. It only allows very exceptionally (if in response to aggression or with the approval of the UN itself) a state to conduct war. With the war in Iraq, the U.S. and the United Kingdom have violated theses principles.

In 1949, the conventions of Geneva (four conventions and two protocols) fixed strict rules on the treatment of soldiers, prisoners of war and civilians in armed conflicts. In the war in Iraq and during the aggression war in Israel of July-August 2006 against Lebanon, these conventions were heavily violated. In 1966, within the framework of the UNO the very important treaties on the civil and political rights and on the economic, social and cultural rights were adopted. In 1950, the important treaty for protection of human rights and fundamental freedoms had already been adopted in Europe.

These progressive achievements of international law stand today strongly under pressure and are ignored worldwide. As progressive lawyers we must defend these fundamental rights obstinately: fight for these rights, for respect for these rights, for the concrete application of it, for the extension of these rights.

With this main point in focus, it will be clear that the war on terror requires a particular responsibility on the shoulders of progressive lawyers.

Power lines from the anti-terror policies of U.S. and EU: A permanent state of terror, a perpetual state of war on terror

1. Extrajudicial killings, torture, secret prisons, secret flights of prisoners.

The Philippines is the most terrible example of the strategy to combat social and political oppression by the killings of their activists (757 killed, 184 missing since Arroyo came into power in 2001).

The secret prisons of the U.S. in countries like Egypt, Romania and Poland and the secret flights with war-prisoners were reasons for worldwide protests.

2. Exceptional anti-terror legislation

Before 11th of September there were in certain countries such as Spain, the United Kingdom and Turkey special anti-terrorism laws. Especially the Turkish law meant far-reaching restrictions on the right to promote political change. This law came about under the influence of the military dictatorship in Turkey. It is thus not astonishing that in Turkey from the seventies on, there was a record of number political prisoners.

What we see after 9/11 is that this type of fascist legislation, which is normal to dictatorships, is introduced in almost all countries. You can see it in the U.S. with the Patriot Act I and II. In Europe, it is implemented by the application of a special resolution of the European Union and in the Philippines with the current law proposal.

The nature of this legislation means that a type of common political offense is inserted in most penal laws whereas previously in most of the penal laws only very specific political offenses had been formerly registered, like for example collaboration with a foreign enemy, insult of a Head of State, etc.

This kind of legislation implies that the political fight which normally must be realized with political resources (debate, elections, mass demonstrations, parliament, bills) and that takes place in the field of the executive and legislative powers, from now on will also be conducted by the courts. This is a very dangerous evolution because it makes an indictable offense of political opposition and because it criminalizes politically other options and actions.

The nature of all this legislation is that it is meant to maintain the existing capitalist order in each country and that it blocks the social action for social and political improvement. This is also said in an explicit way in all those laws.

All these laws against terror introduce a broadly defined prohibition:

To modify the existing political, economic and social order of the country, in other words it is considered terrorism to stand up for another form of society than the one where private property of production resources and of the capital dominates;

To force the governments and international institutions with radical resources not to take certain decisions or to force them to take certain decisions they do not want to take;

To scare the population: which is meant to cover organizing broad social action, and instilling fear for example about general strikes

These laws therefore mix political actions with crime: In other words they make a criminal action out of a political action and strip it of its political character (depoliticize political activities).

They stigmatized a wide range of legitimate political activity as terrorism. This law created terrorist suspects by redefining terrorism in broader ways, blurring any distinction between anti-government protest and organized violence against civilians, by placing entire communities under suspicion of associating with such terrorism by waging psychological warfare through disinformation and mass media scares about Al Qaeda cells.

All these laws impose very heavy sentences, going in certain countries to the death penalty. They lead to a massive increase of political prisoners like in Turkey.

All these laws not only punish individuals for what they do, but introduce also the so-called association-indictable offense. This means that the mere membership in an organization that is considered terrorist, even the legal contribution to that organization without even being member, or the solidarity with such an organization also will be considered terrorist.

The idea of terrorism is extended to several forms of social fight and protest. Dissident political and trade union opinions become criminalized. An environment movement such as Greenpeace or animal rights activist is even prosecuted as terrorist in some countries.

These exceptional laws also lead to exceptional procedures in court, to special anti- terrorism courts, to courts established behind closed doors and lose in this way the publics access, to strategies that avoid the normal guarantees in trials (e.g. secret proof, especially selected lawyers, prohibition among other things for lawyers to make certain information known to client or press), to special system and long periods of incommunicado of the suspect (e.g., proposed Philippine law: 15-day detention before appearance in front of a judge) something that opens the door for the application of torture during interrogations.

On 19 September 2001, barely 8 days after 9/11, the EU came up with a framework decision against terrorism and a framework decision for a European warrant of arrest. Because of the framework decision against terrorism, all EU countries were obligated to draw up anti-terror legislation in their own penal codes. This happened in 2004. This new legislation means a historical intervention in criminal legislation: for the first time in history, a very broadly defined and general political crime is added to the penal code, with heavy punishment and with punishment for mere membership (also when the person has done nothing wrong).

The definition of a terrorist crime is clearly a political crime. What is defined as a terrorist purpose: disclosing or destroying the political, constitutional, economic or social basic structures, forcing a government to abstain from an action; and inflicting grave fear on the population of a country.

These are pre-eminently political intentions.

Anyone, like the European dockworkers who want to compel the European Commission to withdraw its directive to liberalize the hiring of dockworkers, falls under this definition. Those who carry out anti-globalization activities against capitalism and who want another society, also fall under this category. So, this goes much further than combating Al Qaeda, and makes clear that Al Qaeda, in fact is a pretext to go after anyone who opposes in a radical way.

3. Administrative repression replaces more and more repression by means of the criminal law. Lists of terrorists.

There is a tendency to politically repress more and more by means of the administrative process. The administration, the executive power and the government act in name of the courts. A number of guarantees, recognized in criminal law: right to due process, right to objection, right by a lawyer, right to examination of the file and the evidence disappear in that way. These administrative measures are based on unverifiable information of security services.

It is already this way in the United Kingdom with the so-called control orders. By means of these control orders the government can take very far-reaching measures (administrative detention, house judgment, prohibition for communication with third parties, only lawyers indicated by the state can act in the purely administrative procedure) without the necessity to prove a violation on penal law.

The most far-reaching example is of course the U.S. prison of Guantanamo. One single command of the president of the U.S. and of the government of this country mean that about 400 prisoners are stuck in this prison, some for already five years, without any form of due process, of (being detained) without charge.

That this is the real strategy behind the EU anti-terror policy is confirmed by the so-called list of terrorist organizations and individuals. This list has been drawn up by the EU without any defense by the concerned and without any right to defend himself.

As a consequence, anyone on the list is deprived of all financial means to undertake political actions, and that the branding with the label terrorist scares anyone who wants to be in solidarity with the person or organization.

The criminalizing effect therefore not only on Al Qaeda is evident because there are also liberation movements which for decades have been struggling against tyranny, oppression or occupation. Movements like the NPA (New Peoples Army) in the Philippines, (and the chief political consultant of the panel of the National Democratic Front of the Philippines in peace talks with the Government of the Republic of the Philippines, Professor Jose Maria Sison) and the PFLP (Popular Front for the Liberation of Palestine) or the Iranian Mujaheddin are on the list. The struggles of these organizations are legitimate under international law, but this right to (armed) resistance is now downgraded by the EU to a criminal act.

4. Complete control of the population and extension of the secret investigation methods of the police force and security services.

In every country of the world, large-scale measures which allow the checking of the activities of the population are taken.

This happens by massive registering of data (data which by means of the internet, mail movement, telephone, databank swift scandal-are obtained). The U.S. obliges other countries to pass on details about all kinds of personal information (e.g. eating habits) of plane passengers to the U.S. These massive fact files are digitally verified by means of code words. Thus, enormous analyses and lists are made about individuals and organizations, of which majority does nothing else but in a legitimate manner practice their civil liberties. These analyses are used to criminalize social protest. In that way the big brother society has become a fact.

This is done by giving to the judicial service and police force, but now also more and more to the information and security services (of state, of the army) the possibility to use particular control methods without judicial or parliamentary control: infiltration, letter, telephone and mail tap, observation, use of monitoring equipment, house seeking without democratic control and without opportunity of the touched person to resist.

There is a worldwide tendency to use these data collected by secret services, collected within the framework of the security policy of a state, also in criminal law. This breaks through the borders of the criminal law seeing that data from security investigations are not intended for criminal prosecution.

5. From Terrorism to Extremism and Radicalism

The war against terror is a conscious strategy of the EU and the United States against every resistance directed at neo-liberal capitalism. This is further made evident from the fact that since 2004, in one breath, extremism and radicalism are put in the same category with terrorism. Naturally, the excessive profits of the multinationals in, for example, the bank or petroleum sector, are not meant here. The struggle against extremism is being peddled as a struggle against the fundamentalist and radical tendencies in the Muslim world and especially among Muslim migrants in Europe.

But this flag does not cover the entire cargo. Under extremism is envisioned all individuals and organizations who in one way or another question the existing society, even environmental activists like Greenpeace. A striking example of this is the secret list of the police service in Antwerp (a port city in Belgium with 420.000 residents) which was exposed in 2005. In the list of terrorist and extremist organizations of the city were more than 200 names of persons and organizations, 99 percent of whom undertake legal and open social and political activities. These were migrant organizations, printing presses, humanitarian organizations, protectors of animal rights, and progressive lawyers. In this way, under the cover of the fight against terrorism, the most flagrant violations of the basic rights become normal practice.

The existence of such a list means that persons and organizations will be followed, their privacy violated, their right to free organization and freedom of speech curtailed. In this way, the understanding of terrorism is expanded to all forms of protest and resistance in the political, trade union and social fields.

6. Restrictions on fundamental rights

Ill give you one very concrete and recent example that indicates how far fundamental rights are damaged. At the end of September 2006 the American Senate approved the Military Commissions Act. Military interrogators can now use unorthodox interrogation techniques to enforce suspects of terror to make confessions, such as keeping suspects awake, keeping them upright in stressful positions, exposing them to heat, water and cold. Torture, forbidden by international treaties, becomes in that way legalized. These barbaric methods mean the end of the rule of law. Universal citizens rights which must protect us against possible arbitrariness of the state, the army and the police force are lost. The same Military Commissions Act presents further military commissions for all persons qualified by the president of the U.S. as Unlawful Enemy Combatant. These military commissions are composed only of military judges, the suspects are only defended by military lawyers or by civil lawyers that must be screened and must acquire a special admission, they work with secret information and proves which cannot be communicated by the lawyer to its costumer, a large number of the indictable offenses can be sanctioned with the death penalty. Also fundamental Right of the Habeas Corpus (that nobody can be deprived of freedom without a command of a judge and without right of objection at a judge) is simply abolished. It is clear that this legislation means the end of the rule of law.

Kellogg Brown & Root, a subsidiary of Cheneys (U.S. vice president) Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.

The war on terror of the EU infringes on other fields. The framework decision on the European extradition order has a consequence that within the EU, extradition also of those politically suspected or convicted happens almost automatically. A country used to be able to refuse the extradition of the person in question if he was a citizen of the country, if he was a political refugee, if it was a political crime, or if there was threat that the person would be persecuted because of his religion, nationality or political beliefs. All of these fundamental guarantees, which were achievements in international law in the 19th century, are, with one blow, abolished.

Another phenomenon is that the exception laws like the anti-terror laws lead to exceptional procedures and to strategies to avoid guarantees of due process. In this way the classic principles of criminal law are eroded. More and more, there is work on secret documents which the defense has no right to see. Special judges, special solicitors and even appointed lawyers (so that the free choice of a lawyer disappears are being implemented.

A shift has been established from the repression through criminal law to the repression via administrative law, where even less guarantees exist for the defense than in criminal law. A typical, but very terrible example is the control orders in the UK. With one control order, a person can be subjected for months to all sorts of control regulations (for example, house arrest, forbidden to exchange letters, telephone and visits from friends) can happen through a decision of the minister of internal affairs on the basis of a secret dossier without any judicial review.

This example illustrates a more general tendency in the EU: the increasingly bigger hold of the executive authority (to the detriment of the legislative and judicial authority power). The executive authority, (EU Council of Ministers, EU commission, national governments, police, info and security services, solicitors) determine more and more which laws will be passed (they dictate these to the parliaments of the different EU countries and to the European Parliament) and they decide more and more practice of the repression. The control orders but also the EU list of the so-called terrorists are the most typical examples of this. It is very important that in most of the EU countries, during the last few years, laws have been made allowing the police, secret and info services of the country entrance to use extraordinary investigation methods. These extraordinary investigation methods (tapping, infiltration, surveillance) are almost without judicial controls and so broad that every individual that is under suspicion to have the intention to commit a crime, can be the subject of this.

7. What is still in the Pipeline?

The G8 wants to sharpen the repression in two areas.

First, they want the anti-terror laws in all the countries to be even more broad so that the apology (the justification) of a terrorist act, will be punishable. This is a very dangerous tendency because this can lead to suppression of press freedom. Which journalist will now dare give news about, for example, liberation movement in the Third World if he himself will risk being accused of being a terrorist?

Secondly, they want that the information that security services collect by using secret investigation procedures can be used in criminal cases. The problem here is that this secret information, even during the court hearing, in large measure, must remain secret, which, naturally, leads to the giving of secret criminal dossiers and to special judges and specified lawyers who must guarantee this secrecy.

Increasing Resistance

There is worldwide a growing resistance against this war on terror which has degenerated into war against fundamental rights and especially to the criminalizing of every political and social movement that dares to questions the exploitation of capital with the scandalous profits and enrichment of a fraction of the population.

Jo Stevens, Chairperson of the Orde van Vlaamse Balies, (Order of Flemish Associations in Belgium), and which represents more than 8,000 lawyers in Belgium, expressed it in his New Year speech as follows: Because a gentleman in America has declared the war on terror, we have become lawyers in the time of war. The rights and freedom that Europe through the centuries centimeter by centimeter has fought for are now being reversed. The fundamentalists of prevention and repression threaten our rule of law more than the religious fundamentalists.

This standpoint I can adopt wholeheartedly. It is also a call to the progressive lawyers, together with the broad social and trade union movement to defend the fundamental rights, especially the right to social improvement.


– Stop extra-judicial killings, independent investigation of the killings, punishment of the responsible persons;

– Campaign for the repeal of the exceptional anti-terrorist laws;

– Oppose any measures which could criminalize mere association with a political organization, or which involve detention without charge, or restrictions on freedom of speech, association or publication;

– Defend the democratic freedom of dissent and to resist oppression, nationally and internationally; respect for the right to oppose tyranny and state-oppression.

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