. Sovereignty and Spycops: Agamben and the Criminal Conduct Bill | Ceasefire Magazine

Analysis | Sovereignty and Spycops: Agamben and the Criminal Conduct Bill

Two weeks ago British MPs passed the Criminal Conduct Bill, which allows UK public authorities to commit crimes while undercover. Agamben's theory of sovereignty can help us understand what the bill means for the expansion of state power and states of exception, argues Tom Goodyer.

New in Ceasefire - Posted on Thursday, October 29, 2020 9:27 - 0 Comments

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The theorist Giorgio Agamben defines state sovereignty as being predicated on a movement of inclusion and exclusion. It is the state that decides who is afforded access to the higher privileges of society – the protection of life and freedom – and who is not, with those in the latter category inhabiting ‘zones of exception’. Examples of such zones include Guantanamo Bay, the Abu Ghraib prison in Iraq and the Nazi concentration camp (the zone of exceptionality sine qua non for Agamben). It is in such places that ‘the so-called sacred and inalienable rights of man show themselves to lack every protection and reality at the moment in which they can no longer take the form of rights belonging to citizens of a state.’ The excluded thus must persist in ‘bare’ life, exposed to the dangers and violence that statehood claims to protect against.

Corollary with these loci of exception are what might be termed ‘floating sovereignties,’ the democratic alternative to the rigid enclosure of the prison or the detention centre, as systems of control counterpose systems of discipline. Under this thoroughly neoliberal paradigm, the sovereign division between valued life and bare life no longer needs the pretext of a prison wall or an international border, but may impose itself on anybody at any time. The foremost recipient of this floating sovereignty is the police officer, in whom, per Agamben, ‘the proximity and the almost constitutive exchange between violence and right that characterizes the figure of the sovereign is shown more nakedly and clearly than anywhere else.’ The image of Derek Chauvin violently designating George Floyd as exceptional to the supposedly intrinsic right to life-as-such immediately springs to mind.

Physical spaces of exception still exist in Modern Britain, in Yarl’s Wood, for instance, or the border at Calais, but the government has shown a desire to launder this violence elsewhere and, with the Covert Human Intelligence Sources (Criminal Conduct) Bill currently at the second reading stage in the House of Lords – after being passed by MPs earlier this month, buoyed by The Labour Party’s abstention – constitute sovereignty as a floating and covert mantle, rather than a spectacular one governed by spatial determiners.

As dissenting Labour MPs have pointed out, by indemnifying MI5 agents against prosecution for crimes committed ‘in the course of, or otherwise in connection with, the conduct of covert human intelligence sources,’ the Criminal Conduct Bill ‘essentially gives free rein for torture, murder, and sexual violence.’ The bill, then, is functionally a codification of the state of exception. It folds illegality into the framework of the law and makes sovereignty diffuse, translated from the courts and parliamentary chambers where collective oversight might be exercised, to the discretion of individual agents in the moment.

Indeed, we need only look at the undercover policing norms that anticipate it in order to see its perniciousness. From 1968 to 2008, the amiably titled Special Demonstration Squad used the names of 80 dead children to infiltrate environmental, anti-war and worker solidarity groups, engaging in sexual relations with female organisers and, in some cases, fathering children with them, a practice one victim described as ‘like being raped by the state.’ These women found themselves in a position where licit, state-sponsored violence could be levied at them without reproach, showing apparently sacrosanct legal rights to be immanently unsubstantive in the face of state power. Through this bill, this state of exception, usually reserved for camps and border zones, would impend with an even greater weight than it already does on the life of every citizen.

The Labour leader, Keir Starmer, who called for his party’s abstention, is no stranger to these kinds of measures. When it was found that the CPS withheld evidence relating to undercover police officer Mark Kennedy during the trial of six environmental activists for aggravated trespass — with Kennedy, who also engaged in deceptive intimate relationships with activists, acting as a provocateur — Starmer, then head of the CPS, commissioned a report into covert policing. Its findings admitted no systemic failure, and was broadly decried as ‘unacceptable’, plagued as it was by a failure to identify ‘institutionalised corruption of the law’; nor did it offer redress to the victims or allow for cases which may have yielded wrongful convictions to be revisited. Further, when the CPS announced it would not be pressing charges against the police officers who had deceived women into sexual relationships, this was in part a result of Starmer’s raising of the evidential threshold from 50% to 60%, a move which also led to fewer prosecutions for ‘complex’ rape cases, in general.

Not only did Starmer’s CPS advise on how to infiltrate left-wing groups and issue new guidelines which made it easier for police to find a pretence to act with impunity against protesters, but it also failed to rectify its own complicity in sovereign power. As such, it is completely characteristic of Starmer to have called for an abstention on the vote, despite the fact the bill’s passage could have been defeated.

Official justifications offered for the bill have been typically suffused with ideology. In the words of Minister of State for Security James Brokenshire, the bill ‘would help keep our country safe,’ while its contents mention ‘national security’ specifically. Such powers as are protected by the bill have, however, been used to blacklist thousands of trade unionists, causing protracted unemployment and hardship, and, as revealed by an investigation in the Guardian, target the left with an almost laughable inordinacy. If the function of ideology is to obfuscate and naturalise its own presuppositions in order to establish an apparently unideological stance, then this bill would have us assume that trade unions and animal rights groups represent more of a threat to our collective safety than groups, such as Britain First or the EDL, who routinely victimise asylum seekers, and that state agents committing violent crimes in the nebulously defined ‘interests of the economic well-being of the United Kingdom‘ is necessary and normal. Under this stipulation, any strikes or protests which cause property damage could result in infiltrations leading to state violence against vulnerable groups.

It would be incredibly easy to cast the rhetoric around national security as a straightforward obfuscation of a deeper ideological desire to shackle and effect violence upon left-wing activism. Indeed, ideology smuggled through the guise of anti-extremism chimes nicely with the government’s ban on anti-capitalist material in schools and Priti Patel’s war on so-called ‘lefty lawyers.’

As it pertains to sovereign power, however, it may be fruitful to take the prescription that we should afford state agents unimpeded bio-political discretion for the sake of national security in a ‘rigorously literal sense,’ as Agamben calls it. Citing the disguising of the Gulf War as a ‘mere “police operation,”’ he makes the point that what should be examined is not the patently ideological form of the metaphor, but its contents. In other words, what is interesting is not how war is coming to resemble a police operation, but how police operations are coming to resemble war.

Applying this logic here, we should recognise that these acts of state violence are, indeed, done with security in mind, but that security as such is not a neutral political aim. Rather, in a sovereign framework, the security of one necessitates the insecurity of another. Just as terrorism prodded post-9/11 America into committing terroristic acts, a state that insists on security will always itself compromise the security of the lives within its borders, inasmuch as that insistence is substantive.

This is because what is ultimately at stake is not securing life, but securing the notion of security itself. In order for security to function as a neutralising ideal through which political actions can acquire apolitical legitimation, security has to be shown to come prior to moral concerns. Thus, collusion with sympathetic paramilitary groups, attempts to smear the families of murder victims to stem potential racial unrest or tactics which, as in the case of the SDS, leave specific lives bare and insecure through floating iterations of sovereign power, all serve to reify security as the supreme object of the state and support its metastasis into every sphere of life. The state of exception thus becomes a state of necessity.

It is little wonder, then, that the response from Labour’s frontbench has been to hand wring about how the bill is ‘very vague and very broad,’ as Yvette Cooper put it. The presupposition that security is a neutral aim is naturalised, and any consideration of what that might mean for the trade unionists within the Labour party is elided. All that’s left is to ‘get this legislation right.’

As Andrew Robinson points out, Agamben’s theory of sovereignty is ontological, not contingent. Keir Starmer’s unwillingness to oppose the bill, and the Labour Party’s whole-hearted acceptance of the discourse of security, prove him right. The power to decide who lives and who dies, who is worthy of legal guarantees against rape or murder by the state, the monopoly of violence, is ultimately central to what a state is. It transcends internal nuances of policy and proclaims the insubstantiality of a supposedly inherent right to life as such, leaving everyone vulnerable to having that life laid bare.

Tom Goodyer

Tom Goodyer is a writer and former Opinions Editor of I:M Magazine. He has previously been published by The Young Fabian Society and The Horizon.

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