To support the “war on terrorism,” the concept of war has been introduced into the criminal code of all Western countries. This is the first step on the way to a merger between criminal law and the law of war. Massive spying by the secret services of a country on its citizens has today become the norm. The Snowden revelations on the operations of the NSA have only brought to light a widespread surveillance that is already legalized.… Despite the prominence given to the practices of U.S. intelligence agencies and the resulting indignation in France, the French parliament just adopted a military planning law that includes measures allowing practices similar to those of the NSA, specifically massive spying by intelligence agencies on citizens.
By introducing the concept of war into national law, the latest U.S. anti- terrorist law, the Military Commissions Act of 2006 (MCA), produces a turning point in the legal and political organization of the Western world. It puts an end to a form of state that succeeded in “establishing peace internally and excluding hostility as a concept of law.”1 It is the constituent act of a new form of state that establishes war as a political relation between constituted authorities and national populations.
The function of criminal law has been altered within the context of the anti-terrorist struggle. Normally, criminal law treats prosecuted persons as individuals. The criminalization of terrorist organizations and the criminalization of participation in or support for such organizations create offenses of collective responsibility. The object is to attack actual or potential organizations. It is no longer just the act of committing a crime or even the intention of doing so that is prosecuted. Merely belonging to a group that is considered terrorist by the government is sufficient for punishment
The British Parliament adopted a new antiterrorist law, the Prevention of Terrorism Act, on March 11, 2005. By doing so, Parliament made it possible for the government to carry out the long-standing project of expanding the emergency provisions to which foreigners are subjected within the context of the war on terrorism to cover the whole population, including citizens. This change is important because it calls into question the notion of habeas corpus. The law attacks the formal separation of powers by giving to the secretary of state for home affairs judicial prerogatives. Further, it reduces the rights of the defense practically to nothing. It also establishes the primacy of suspicion over fact, since measures restricting liberties, potentially leading to house arrest, could be imposed on individuals not for what they have done, but according to what the home secretary thinks they could have done or could do. Thus, this law deliberately turns its back on the rule of law and establishes a new form of political regime
The “war against terrorism” has provided all executive branches of the leading Western governments with a perfect opportunity to make some deep adjustments to society. These changes are so far-reaching that they approach a shedding of the old political regime. We in the West are witnessing a reversal of the role of criminal procedure right across the board. Its usual function-to guarantee fundamental freedoms and cap the powers of police and government-is morphing into the opposite, a suspension of constitutional order. By extending exceptional proceedings to all stages of the criminal process-from inquiry to trial-private life is being invaded and the expression of public freedoms chilled. The antiterrorist legislation is explicitly political, and the subjectivity of its approach leaves significant room for interpretation. The arbitrary nature of the antiterrorist measures comes out particularly clearly in the lists of individuals and organizations officially labeled as “terrorists.” Being listed means that one can legally be subjected to measures such as close-up surveillance, violation of the privacy of all means of communication from mail to electronic, and having bank accounts frozen