Legalizing Lawlessness: Evaluating the Role of Law in the Utilization of Extra-Legal Discretionary Practices within the War on Terror

This thesis evaluates the perpetual state of exception which formed as a result of post 9/11 anti-terrorism legislative amendments. It sets out to examine the role of law as a mechanism which influences the utilization of extra-legal practices in the post 9/11 era. The concern with such practices is that while they might be justifiable as temporary measures in conditions of severe emergency, there is a danger that they will extend beyond the state of emergency and as such, risk becoming the norm. This thesis will explore the impact of legality, in this case the amendments to the Criminal Code effected by the Anti-terrorism Act. The new provisions have become permanent components of criminal law, and as such appear to be in accordance with a legality model, which provides individuals charged with terrorism related offences the same rights that are guaranteed to all accused in the criminal justice system. However, they raise concerns that the appearance of legality may mask expansive discretionary powers that within the present social and political climate are likely to be focused on select minorities. Thus a state of exception may be the concealed effect of traditional criminal law, raising concerns that the appearance of legality may legitimize a permanent state of exception, at least for these select minorities. While the current concerns raised throughout this thesis are confined to the "war on terror", there is an imminent danger that the state of exception and the subsequent creation of camps which it authorizes could extend to other crimes in the future and be subjected to another subset group within society.