Imagined fears : from mass terror to authoritarian legality, and the future of liberal reform
University of British Columbia
Doctor of Philosophy - PhD
In the decade after 9/11, a series of extraordinary counter-terror measures have come to be entrenched in law and policy in Canada and the United States. These include indefinite detention without charge, expanded state secrecy and surveillance, and (in the US) targeted killing. This thesis examines policy debates, jurisprudence, and public opinion relating to these measures with a view to advancing three claims. First, by virtue of a common political insistence that such measures were legal, and a broad acceptance of such on the part of the judiciary and the public, the measures can be understood collectively as marking a shift in the cultural currency of liberal legality to what can be called authoritarian legality. Second, the shift was made possible in part by the prevalence of a “catastrophic imagination.” This was a belief that an attack was likely to occur in the near future involving weapons of mass destruction or casualties on the order of 9/11 or greater, and that to defend against this, states were justified in embracing a larger preemptive turn in law and security. Third, in the process of defending liberal legality, rights advocates, scholars, and jurists have tended to either defer to or ignore claims about the imminence of mass terror, when a more effective case for reform might have been made by challenging those beliefs directly. The final part of this thesis offers a model for advocating reform of extraordinary measures that is premised on showing (a) why an attack involving WMD is not in fact imminent or probable; and (b) why future attacks in North America are likely to be no more serious or frequent than previous attacks (Oklahoma, Air India), which were capable of being addressed effectively through the criminal law and liberal legal principles. The conclusion addresses potential obstacles to the use of this model as a basis for reform advocacy, including the claim that concerns other than a fear of mass terror (e.g., racism, xenophobia, broader fears of violent crime) are the true basis of public support for authoritarian measures.
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