From probabilities to possibilities: terrorism peace bonds, pre-emptive security, and modulations of criminal law
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From probabilities to possibilities: terrorism peace bonds, pre-emptive security, and modulations of criminal law Fahad Ahmad 1
& Jeffrey
Monaghan 2
# Springer Nature B.V. 2020
Abstract Scholars have noted that pre-emptive security practices have gradually been transforming the probabilistic logics of criminal law towards increasingly possibilistic logics. Our article is focused on the terrorism peace bond regime in Canada since 2015, which provides an explicit illustration of the movement from probabilistic to possibilistic thresholds in criminal law. Documenting specific experiences of terrorism peace bond proceedings through the narratives of defence lawyers involved in recent cases, we focus on several manifestations of possibilistic practices; including the difficulties of contesting accusations about future activities, the erosion of evidentiary standards, conjectural reasoning animated by the racialized character of the ‘war on terror,’ and a reverse onus placed on accused subjects in these proceedings. Contributing to research examining the transformations of criminal law, we suggest that terrorism peace bonds are not an exceptionalist practice but a modulation that allows previously excluded legal norms into a broadened, more authoritarian umbrella of criminal law. To conclude, we position terrorism peace bonds not so much a return to the criminal justice model but as a possibilistic modulation of criminal law that accommodates pre-emptive and racialized practices in more depoliticized forms. Keywords Terrorism . Criminal law . Pre-crime . Race . War on terror . Conjectural
reasoning . Peace bonds . Security
* Jeffrey Monaghan [email protected] Fahad Ahmad [email protected]
1
School of Public Policy and Administration, Carleton University, Ottawa, Canada
2
Institute of Criminology and Criminal Justice, Carleton University, Ottawa, Canada
Ahmad F., Monaghan J.
Introduction Pre-emptive interventions aimed at stopping suspected or imagined acts of violence have become a defining characteristic of contemporary security governance [2, 33, 35, 37]. While pre-emptive practices have impacted several domains of governance, state security regimes remain the most explicit manifestation of what Zedner [44] calls the “pre-crime society.” This article offers an engagement with a specific, blunt instrument of pre-emption: Canada’s terrorism peace bond regime. As a unique type of restraining order, terrorism peace bonds can be granted by judicial authorities based on the fear of a future terrorist attack. Terrorism peace bonds were originally created as part of the 2001 Anti-terrorism Act, however the focus of our analysis surrounds enhancements made in 2015 that moved the burden of proof from a demonstration that an individual will engage in future terrorist activity to a demonstration that an individual may engage in future terrorism activity. As an explicit move from probabilities to possibilities that is characteristic of the pre-crime society, the lowering of the terrorism peace bond sta
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