Future Threat: Pre-Crime, State Terror, and Dystopia in the 21St Century

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charged with conspiring to engage in Future threat: these pre-crime offences, creating pre-pre crime offences.The second category of pre-crime measures are pre-crime, state terror, those criminal justice or security measures involving substantial and

PRE-CRIME and dystopia in the continuing coercive police or state action without a legally required link st to criminal charge, prosecution, or 21 century conviction. The controversial control order regime falls within this Jude McCulloch and Sharon Pickering category along with preventive detention and the power of security question whether pre-crime approaches work. agencies and police to detain for extended periods without charge It will end the check and balance towards identifying potential threats (McCulloch and Pickering, 2009). system. Pre-crime will no longer and intervening before they emerge Pre-crime’s anticipatory logic is be an independent agency.The (Zedner, 2007). Domestic pre-crime the antithesis of the temporally linear Senate will control the police, counter terrorism measures are based post-crime criminal justice process and after that …. They’ll absorb on the same logic as the pre-emptive that commences from the the Army too. (P K Dick, 1956, military strategy articulated by presumption of innocence and Minority Report) George W. Bush prior to the invasion progresses through a number of of Iraq. Pre-crime is directed at discrete stages involving n Dick’s 1950s science fiction a monitoring, detaining, disrupting, investigation, charge, and trial and, police pre-crime unit predicts and, in some cases, charging and in the case of a guilty verdict, Imurders and incapacitates future prosecuting groups and individuals punishment. Punishment under killers prior to the foretold deadly considered to present a future threat. pre-crime counter-terrorism crime. Anticipating threats and The criminal law has traditionally frameworks may come before and pre-empting crimes fit with been post crime in its focus. Major without crime. contemporary preoccupations with exceptions to this were offences Counter-terrorism is uniquely security and the future in the ‘risk aimed at acts and plans preceding a suited to advancing the pre-crime society’. While pre-empting threats substantive offence, such as trend because the concept of was a well-established trend within attempted murder and conspiracy to ‘terrorism’ is inherently pre-emptive. criminal justice prior to 9/11 murder. These offences make it an Formally, only a court can determine contemporary counter terrorism offence to attempt or engage in a who is a criminal, because the courts measures have taken it to a new conspiracy to commit crime. In are the space in which verdicts are level. The current wave of pre-crime addition to this the criminal law has reached. The label ‘criminal’ refers to counter terrorism measures has its long targeted associations considered a person’s past conduct and is antecedents in United States led wars conducive to crime. However, such ascribed after a court process. on drugs and crime. Contemporary association offences were Politics and politicians, on the other counter-terrorism measures also traditionally minor offences only. The hand, essentially determine in closely resemble colonial counter- bulk of the counter-terrorism laws advance who is a terrorist and what insurgency strategies used by enacted post 9/11 are targeted at constitutes an act of terrorism imperial powers in efforts to defeat crimes that have not occurred, have independently of the courts. The nationalist movements (McCulloch not been attempted, and for which labels ‘terrorism/terrorist’ are and Pickering, 2005). A key feature there is no specific plan (such as fundamentally political constructs of pre-crime frameworks is the required under the law of that exist apart from criminal justice merging of criminal justice and conspiracy) and attached serious processes. national security systems to produce criminal penalties to associations of Counter-terrorism pre-crime is what have been called ‘crimefare particular kinds. rationalised on the basis that states’ (Andreas and Price, 2001). Pre-crime can be broken down terrorism is an exceptional threat that This hybrid crime/war system gives into two categories. The first are laws warrants what has been called a rise to major tensions between the and the police and security agency ‘new paradigm in prevention’. The ideal of impartial criminal justice powers attached to them that expand logic is simple. Terrorists aim to and the highly partisan practice of the remit of the criminal law beyond create mass casualties and therefore national security. the extant offences of conspiracy and must be stopped before they act The pre-emptive strategy linked to attempts. Such legislation typically because the human costs are too counter-terrorism legislation includes activities or associations high to risk an attack. The logic of establishes a ‘pre-crime’ criminal that are deemed to precede the prevention is unassailable and we justice framework involving a shift in substantive offence that is being have no argument with the idea that focus from individual offending pre-empted. People have been preventing mass casualty attacks,

rCJM No 81.indd 32 25/08/2010 10:30:59 with all the human tragedy that Counter-terrorism is linked to ‘crime interests of police and security follows, should be the primary science’, a profitable and expanding agencies. As Georgio Agamben objective of counter-terrorism law. field. There has, however, been little warns, ‘the security reasons that are However, pre-crime and the pre- headway made in efforts to establish invoked should not impress us: they emptive logic that drives it are not relevant variables and no evidence have nothing to do with it’ (2004). synonymous with prevention. that the ‘profiles’ developed to The term ‘pre-crime’ captures the

Prevention is an outcome while predict threats are effective. key problematic of counter-terrorism PRE-CRIME pre-crime and pre-emption are Nevertheless, ‘race’, religion, laws. Pre-crime suggests that no strategies. Pre-empting threats politics, and ethnicity continue to be crime has been committed, while through pre-crime laws translates seen and used as proxies for risk simultaneously evoking the crime into prevention only if the laws are (Cole and Dempsey, 2006). The that has not happened. Crime and effective. There is almost no counter-terrorism pre-crime project pre-crime exist together as matter to empirical data to test claims about relies less on joining the dots or shadow. Imagination animated the effectiveness of counter-terrorism putting the pieces of a puzzle through prejudice and stereotypes, laws in preventing attacks or together – metaphors that suggests an rather than objective fact or evidence contributing to broader strategies underlying pattern – than the that points to those facts, form the aimed at preventing attacks. The distinctly unscientific practice of basis of police and security research that is available suggests crystal ball gazing. intelligence action and prosecution that some counter-terrorism If pre-crime can’t be said to have under counter-terrorism pre-crime measures do not achieve the been successful in prevention it has frameworks. Dick well understood outcomes sought and others are produced other results. Pre-crime that the promise of a crime-free counter-productive (Lum et al., mobilises prejudice around identity society was also a threat. His story, 2006). It is unsafe to assume that and intensified politicisation of centred on the police pre-crime unit, counter-terrorism laws are successful policing and law. Pre-crime has is a vision of a dystopian world of in preventing attacks. profited police and security state power and the fate of an Intelligence on threats is intelligence agencies, which have individual caught in its trap. n particularly important in the context gained prestige, powers, and of pre-crime laws. Many of the resources. Pre-crime counter- Jude McCulloch is Professor in Criminology changes to law have expanded the terrorism legislation profits and Sharon Pickering is Associate Professor capacity of police and security politicians by enabling them to in Criminology at Monash University, Australia. agencies to gather intelligence. appear ‘tough on terrorism’ while Intelligence agencies and the simultaneously promoting a sense of References production and use of intelligence, insecurity, amplifying their kudos as Agamben, G, (2004), ‘No to bio-political traditionally linked to national ‘strong’ leaders. On another level tattooing’, Le Monde (Paris), 10 January. security, are increasingly embedded pre-crime produces ‘terrorism’. In a Andreas, P. and Price, R. (2001), ‘From in criminal justice. Counter-terrorism pre-crime world, offenders, victims, war fighting to crime fighting: laws necessarily involve gathering and the crime themselves are Transforming the American national political intelligence because spectres, tangible only through security state’, International Studies terrorism is, as argued previously, a counter-measures. While race, Review, 3, pp.31–52. political construct. Security ethnicity, and religion are used as Cole, D. and Dempsey, J. (2006), intelligence agencies and their proxies for risk, counter-measures are Terrorism and the Constitution: counterparts amongst law proxies for terrorism. Recurring Sacrificing Civil Liberties in the name of enforcement agencies have always references to terrorist threats and national security, New York: New Press. gathered intelligence on ethnic, plots based on intelligence, linked to Lum, C., Kennedy L. and Sherley, L. non-government, and political police action, or referred to in (2006), ‘Are counter-terrorism strategies groups on the basis that these groups debates over new laws conjure effective? The results of the Campbell Systematic Review on Counter-Terrorism could be fronts for terrorists or that images of outrageous acts of mass Evaluation Research’, Experimental they might at some future time murder, bombings, and general Criminology, 4(2), pp.489–516. engage in ideologically motivated catastrophe. Prosecutions for McCulloch, J. and Pickering, S. (2005), violence themselves. The difference terrorist-related offences likewise ‘Suppressing the financing of terrorism: in the pre-crime counter-terrorism work to produce a sense of imminent Proliferating state crime, eroding censure context is that such intelligence may threat that stands in the place of the and extending neo-colonialism’, British be gathered coercively (as opposed acts themselves, though Journal of Criminology, 45, pp. 470–486. to simply covertly). It may also overwhelmingly these prosecutions McCulloch, J. and Pickering, S. (2009), trigger coercive interventions such as are not linked to completed, ‘Pre-crime and counter terrorism: control orders, or be used to attempted, or planned mass casualty Imagining future crime in the “War on prosecute pre-crime offences. attacks. While pre-crime is publicly Terror”’, British Journal of Criminology, The effectiveness of risk promoted as a prevention strategy 49(5), p.628. prediction using intelligence relies this stated agenda may obscure other Zedner, L. (2007), ‘Pre-crime and on accurate information on the hidden agendas related to domestic post-criminology?’, Theoretical variables associated with threat. and foreign politics and the vested Criminology, 11, pp.261–281.

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