Pragmatic persuasion in counterterrorism

Abstract

This article approaches a hitherto understudied topic in counterterrorism discourse, namely argumentative speech, as it relates to measures impacting on human rights. Frame analysis is applied for the first time in this area to statements and other types of ‘public speech’ communicated by the main US and EU executive institutions between September 2001 and September 2010. After detailing some methodological considerations, the article focuses on the pragmatic justification pattern and assesses its persuasion potential along a series of resonance criteria. It then argues for a more rigorous analysis of normative argumentation along a series of inductively derived analytical concepts and for a switch in focus from the liberty versus security trade-off and from the notion of exceptionalism towards that of pragmatism, given the increased odds of ‘success’ of this type of argumentation in the context of de facto normative change.

Keywords:

• counterterrorism
• human rights
• frame analysis
• norms
• persuasion

Introduction

The global war on terror and the fight against terrorism (in the European formulation) have produced a long catalogue of counterterrorism measures since 9/11, often with visibly restrictive potential for human rights. The issue has been taken up in academia mainly from a legal perspective. Authors have dealt, for instance, with concrete instances of normative breach and their effect on particular rights and the national and international human rights regime (see Wilson 2005, Donohue 2008, ICJ 2009, Ojanen 2010), or with the deeper implications of counterterrorism measures for the basic moral and political principles behind human rights (Gearty 2007). The discursive dimension, otherwise explored at length in the context of the global war on terror, has remained relatively underdeveloped as it relates to such measures. Thus, we increasingly have theoretically and methodologically sophisticated analyses of Western governmental and media framings of the war on terror, in particular, as they relate to intervention. Various important concepts and methods of analysis have been proposed, for example, discursive possibility, resonance and dominance (McDonald and Merefield 2010, Holland 2011), analogy (McDonald and Merefield 2010) or metaphor (Spencer 2010). However, little emphasis has been placed on the aspect of normative argumentation ¹ in this context, especially in the rhetoric produced by Western governmental actors as they attempt to gain acceptance for counterterrorism measures that have an impact on human rights. An exception here is Liese (2009) who investigated the contested meaning of the torture ban in the American, British and Israeli executive discourse along three argumentative patterns: ticking bomb, trivialisation and reaffirmation of severe instances of torture.

Thus, a more thorough analysis of the argumentative structure and mechanisms of governmental counterterrorism speech, as it relates to potential breaches of human rights, is necessary on both empirical and theoretical grounds. Executive governmental actors do engage in efforts to legitimise and justify norm-violating counterterrorist measures in public discourse (Bush and Nordlinger 2003, Wolfe 2008, Jarvis 2009). Furthermore, research on normative change has emphasised the role of argumentation and persuasive rhetoric in the dynamic of both norm diffusion (Finnemore 1996, Finnemore and Sikkink 1998, Risse and Sikkink 1999, Crawford 2002) and norm regression. With respect to the latter, McKeown (2009, p. 11) argues that: ‘the purposeful creation of policy in contradiction to the norm, especially if accompanied by the public justification for these policies, will pose a significant challenge to the strength of the norm and signal its declining salience within that state’ [emphasis added].

This article conducts a systematic analysis of normative argumentation in counterterrorism discourse in the United States and the European Union, as it relates to measures impacting on human rights. In the first section, I argue for the methodological suitability of frame analysis, as derived from framing theory in social movements, and outline the methodological procedure that was followed in this study. I then propose a novel and more elaborated catalogue of categories for the analysis of normative argumentation as it relates to counterterrorism measures with an impact on human rights. Within it, I emphasise the importance of the pragmatic justification pattern ‘operational effectiveness’ and assess its persuasion potential along a series of resonance criteria. Based on this finding, I make two arguments with application to the analysis of normative argumentation in counterterrorism: the need for a more rigorous analysis of this discourse and a switch in focus from the liberty versus security trade-off and from the notion of exceptionalism, which were not articulated in the texts analysed, towards pragmatism, given the increased odds of ‘success’ of this type of argumentation in the context of normative change.

The article does not make claims about whether or not certain human rights norms have actually been eroded (for more on this, see McKeown (2009) on the ‘norm death series’ and Panke and Petersohn (2011) on ‘procedural and enforcement regimes’). Another delineation that needs to be made at this point concerns the contestable notion of ‘strategic persuasion’. While introducing a conceptualisation of rhetoric in the context of ‘coercion’ rather than ‘persuasion’, Krebs and Jackson (2007, p. 35) critique the latter concept as ‘theoretically and methodologically problematic’. They bring the concepts of ‘identity’, ‘power’ and ‘structured discourse’ into the discussion to question the assertion that ‘rational deliberation characterises actual political debate’ and point out methodological difficulties in proving persuasion, since this would require ‘unmediated access to people's minds’ (p. 40). This article does, to a certain extent, build on the constructivist literature on norms, including the role of persuasive rhetoric in internalising norms, yet has a slightly different empirical and methodological approach. Although prompted by interest in the effect counterterrorism argumentation might have on human rights norms, the analysis does not focus on arguments which directly and explicitly contest the meaning of these norms, but rather on ones that are brought to support certain measures which, de facto and eventually do, contest it. In fact, as shown later in the article, speakers hardly involved norms in discourse, apart from their repeated affirmation placed in the vicinity of arguments for these measures, without the two being set in an opposing relationship.

Finally, the addressees of the discourse analysed in this article are the respective domestic publics, rather than other governmental actors. In this context, and addressing the methodological question, the resonance criteria developed in social movement theory (see below), which has been given a fair amount of credit by the two authors with respect to the causality of top-down public rhetoric (p. 37), are a well-established indicator for the persuasion potential of frames. In fact, two of the conditions for rhetorical coercion – rhetorical mode (national ideals, narratives and moralistic binaries; Krebs and Lobasz 2007) and institutional position – contain elements of framing resonance.

Framing counterterrorism argumentation

In the original formulation, frames are ‘schemata of interpretation’ that enable individuals ‘to locate, perceive, identify, and label’ occurrences within their life space and the world at large (Goffman 1974, p. 21). In an alternative conceptualisation, collective beliefs or ‘thought-worlds’ (Oberschall 1989) are ‘a structure of classifications and distinctions by means of which information gets framed, stored, and retrieved in organised meaning-bundles for thought and action’ (p. 13). The concept of ‘framing’ has been put to use in both securitisation and norm cycle theories. Eriksson and Noreen (2002) argue that categorising something as a ‘security threat’ or ‘securitisation’ is a form of ‘threat framing’ (see also Vultee (2011) with respect to securitisation frames used in the media). As for the norm life cycle, Payne (2001, p. 43) notes that: ‘Norm entrepreneurs devote significant attention to constructing a suitable cognitive frame in order to persuade target states … to embrace the normative idea they support’. McKeown (2009, p. 10) also makes reference to the ‘(re-)construction of cognitive frames’ as ‘essential to moral regress, where revisionists strategically construct new standards of appropriateness’.

An essential function of ‘framing’ in this context is therefore that of persuading audiences to accept certain representations and standards. This, in turn, occurs through the resort to cultural reservoirs of meaning (Donati 2001, p. 150). Crawford (2009, p. 119) has noted that: ‘All political arguments occur in a context of belief and culture’, and further

if an argument can be understood within the lifeworld and the dominant discourse … it has a much better chance of being persuasive. Arguments can also be framed by their proponents to fit with existing dominant beliefs, actors, and identities, and within existing social structures. (p. 118) [original emphasis]

With respect to the Australian ‘selling’ of the Iraq war to the public, McDonald and Merefield (2010, p. 189) argued that justifying intervention ‘entails effectively framing particular security policy as consistent with a group's sense of itself and its core values … attempts to rally support involve attempts to effectively frame participation in intervention as consistent with the core values of the nation’.

In methodological terms, the added value of ‘framing’ in counterterrorism speech has remained relatively unexplored. Some authors have pointed out the usefulness of frames in order to capture ‘relevant contents and argumentation patterns in discourse’ (Dunn 2004). Barnett (1999, pp. 8–9) used the concept of frames in the understanding that

… actors are constantly attempting to guide political mobilisation toward a particular outcome and for a particular goal by using symbols, metaphors, and cognitive cues to organise experience and fix meaning of events.

His operationalisation of the term remains limited, however, to broad concepts such as ‘cultural terrain’ and ‘cultural tool kit’ (pp. 15–16), with little methodological added value (see also Holland (2010) for a similar conceptualisation of frames in foreign policy discourse). To be sure, ‘frame analysis’ itself has not been developed to the level of a fully fledged, integrated method, but is rather considered as a disparate collection of several, partially incompatible, methods (Scheufele 1999). Furthermore, frame analysis is traceable to at least two approaches: social movement theory and media studies. I argue that, first, for the purpose of analysing and assessing the persuasive potential of normative argumentation in counterterrorism, the social movement approach is more suited, and, second, a method of analysis can be developed on the basis of the main tenets of framing theory, given structural and teleological commonalities with normative argumentation in general and within counterterrorism.

In media studies, framing is usually understood as a process of selecting certain issues or interpretations and affording them more salience (Nimmo and Combs 1985, Entman 1993, Norris 1995, King 1997). In social movements, the conceptualisation of framing is more complex, strategic and focused on persuasion. Movement

adherents negotiate a shared understanding of some problematic condition or situation they define as in need of change, make attributions regarding who or what is to blame, articulate an alternative set of arrangements, and urge others to act in concert to affect change. (Benford and Snow 2000)

Similar to the aforementioned constructivist work on the war on terror and normative change, social movement scholars have also observed that key elements of successful framing in this context are the cultural material, existing beliefs, values, practices, myths, narratives and meanings or the ‘tool kit’ (Swidler 1986). Social movement theory has elaborated at length on the issue of resorting to cultural resources, albeit in the context of adherent mobilisation (Noonan 1995, Zuo and Benford 1995, Berbrier 1998, d'Anjou and Male 1998, Kubal 1998, Park 1998). Actors and movements will attempt to tap into these frames to be persuasive: ‘competing and opposing actors attempt to mobilise consensus by anchoring their definitions of the situation in the collective beliefs of various social groups’ (Klandermans 1992, p. 87).

Finally, and most importantly, social movement framing theory allows for the identification of the conditions under which frames are likely to ‘work’, that is, the conditions that have the potential to be convincing and even to change existing convictions. These have been subsumed under the resonance criteria ² of credibility and salience. In social movement theory, credibility is, in turn, determined by frame consistency (Gerhards and Rucht 1992, Zuo and Benford 1995, Johnson 1997), empirical credibility (Erwin 1993, Zuo and Benford 1995, Babb 1996) and the credibility of the frame articulators (Hovland and Weiss 1951, Aronson and Golden 1962). Salience refers to the centrality, experiential commensurability and narrative fidelity of the frame in relation to the targets of mobilisation (Snow and Benford 1988). The concept of resonance has also been invoked within research on norm establishment as a condition for persuasive success (Nadelmann 1990, Payne 2001). Furthermore, some of the more concrete conceptualisations of resonance criteria developed in social movement theory can be found in a series of constructivist analyses of the war on terror (see above on the notions of beliefs, core values and identity).

While framing theory has produced a more sophisticated catalogue of frame alignment mechanisms, for the purpose of creating an analytical tool for this study, the main framing elements have been considered through the creation of a codebook. These are diagnostic (statement of the problem), prognostic (proposal for a solution) and motivational framing, along with the resonance criteria of credibility and salience. Frame consistency (the congruency between claims and actions), frame centrality (essential beliefs, values and ideals) and narrative fidelity (cultural narrations and myths; Benford and Snow 2000, pp. 620–622) were found and coded in the texts in the following way: evidence that the measures have achieved the desired results, political principles and values and, finally, historical events with a mythological and emotional load. Three resonance conditions were removed from the original codebook as they appeared to a negligible extent in the data: experiential commensurability, authority of the frame articulators and empirical credibility. That said, the argument might be made that authority resonance could be assumed since it did not necessarily need to emanate from discourse, but could emerge from specific institutional competencies and balance of power arrangements (see McDonald and Merefield (2010, p. 194) on ‘institutional legitimacy’ and Krebs and Lobasz (2007, p. 432) on ‘institutional position’).

Apart from framing elements, the codebook included a series of other categories and codes. The category ‘solution’ was broken down into ‘solution identificator’, meaning the actual counterterrorist measures as well as two other categories denoting the general attitude of the speaker towards the measure and the type of justification proposed. ‘Victim’ was also included, alongside denominations and attributes (in the sense of characterisation) of both the victim and the enemy. The reason behind this was the assumption that the enemy and the victim would be described in opposing terms as a means to justify exceptional treatment. This initial frame structure of the codebook was then filled with concrete codes, which were partially raised to a higher abstract level.

With the help of this codebook, a body of data consisting of 213 EU and 781 USA texts (statements, interviews, press releases, etc.) from September 2001 to September 2010 was coded. The texts had been produced by the governmental (executive) actors involved in counterterrorism policy and were available on their respective websites (see Appendix for the data sources and search procedures). ³ The criteria for data selection were a list of keywords corresponding to the counterterrorism measures of interest sourced from reports produced by Human Rights NGOs, such as Amnesty International and Human Rights Watch for the respective period of time, as well as from a series of legal texts on the topic. The line-by-line coding occurred in two steps: first, a sample of randomly selected documents (10% from each institution) was coded. The resulting codebook was developed further during the coding of the remaining documents (new sub-codes were proposed and discussed; if accepted they were included in the codebook and also coded in the previous documents). Double coding was performed in the following manner: EU (100%), USA (50%). The MaxQDA Intercoder Reliability function was used to verify and adjust, where needed, the coding of the independent coders. Two main MaxQDA functions were used in the analysis: the mixed methods tool ‘crosstabs’ displays coding frequencies by country, ⁴ such as the distribution of justification patterns within the EU and the Bush and Obama administrations, and the visual tool ‘code relations browser’ displays intersections of codes and was used primarily to draw conclusions on the embedding of justification patterns in resonance criteria.

Operational effectiveness unleashed

As a result of the intensive coding of the material through the codebook categories, seven types of justification patterns, in the sense of actual reasons given by the various speakers for the implementation of the respective counterterrorism measures, were developed inductively out of concrete, in vivo codes: legality (the measure conforms to existing legal provisions), judicial (bringing individuals to justice), defence, prevention (of future terrorist attacks), protection (of the nation or certain groups/individuals against terrorism), operational effectiveness (technical necessity for the success of counterterrorism operations), and finally the exception argument (enforcement of extraordinary measures given extraordinary circumstances). While the rest of the justification patterns hardly came as a surprise, operational effectiveness did and required additional analysis. Operational effectiveness came as a surprise because, unlike the rest of the coded arguments, it did not unfold in the context of prioritising security over liberty. In fact, in and of itself, this argument did not directly address values and norms, but had a rather pragmatic logic. The speakers only concentrated on the technicalities of the measure and its assessed chances of success. Here are some examples of operational effectiveness argumentation in relation to data protection measures, military commissions, the Central Intelligence Agency (CIA) interrogation programme and the Patriot Act ⁵ :

PNR [Passenger Name Record] data are unique in their nature and their use. Such use can be: re-active (historical data): use in investigations, prosecutions, unravelling of networks after a crime has been committed. In order to allow law enforcement authorities to sufficiently go back in time, a commensurate period of retention of the data by law enforcement authorities is necessary in such cases. [ … ] real time (present data): use in order to prevent a crime, survey or arrest persons before a crime has been committed or because a crime has been or is being committed. (European Commission 2010)

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts. (Obama 2009)

And to find out what the terrorists know about planned attacks, we established a program run by the CIA to detain and question key terrorist leaders and operatives. My administration is determined to ensure those in our government charged with defending America have the tools they need to fight the terrorists. (Bush 2008c)

Inside our country, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the Patriot Act, which authorizes federal law enforcement to share more intelligence information, to track terrorists, to disrupt their cells, and to seize their assets. (Cheney 2004)

In terms of the quantitative distribution of justification patterns by country, operational effectiveness was frequently found to be present in discourse. In fact, operational effectiveness was used more often than any other justification pattern: EU (52%), USA-Bush (26%) and USA-Obama (38%) (see Table 1 below).

Table 1. Distribution of justification patterns (%)

		USA
Justification patterns	EU	Bush	Obama
Legality	7	19	20
Judicial	9	8	6
Defence	0	3	1
Prevention	23	21	11
Protection	9	20	21
Operational effectiveness	52	26	38
Exception	0	3	1

Apart from a quantification of its mere presence in discourse, and considering the resonance criteria discussed above, it was also relevant to assess the persuasion potential of the operational effectiveness justification by looking at the extent to which it was accompanied by resonance conditions (credibility and salience). The following example illustrates the embedding of operational effectiveness justifications in various ideas, principles and values (frame centrality), elements of narrative fidelity (historical events and collective memories) and elements of frame consistency (which show the adequacy and success of counterterrorism measures). Here, the scene was set with the evocation of 9/11 and the state of mind was associated with this event. 9/11 was in fact mentioned 11 times in this text; also evoked were the political values of ‘liberty’, ‘freedom’ and the personal value of ‘determination’. Operational effectiveness was accompanied by two other justification patterns: defence and protection.

You know, for me, it was a reminder about how I felt right after 9/11. I felt a sense of determination and conviction about doing everything that is necessary to protect the people. I'm going to go back to New York to address the United Nations General Assembly. I'm going to talk to world leaders gathered there about our obligation to defend civilization and liberty, to support the forces of freedom and moderation throughout the Middle East. As we work with the international community to defeat the terrorists and extremists, to provide an alternative to their hateful ideology, we must also provide our military and intelligence professionals with the tools they need to protect our country from another attack. (Bush 2006c)

Further down in the text, 9/11 was invoked again, this time more along the lines of an emotionally loaded recollection: ‘a tough day for a lot of our citizens’ and ‘the attack that killed 3000 people’. It was also set in relationship, along with the actual measure – the CIA's interrogation programme – to the pragmatic justification: ‘And we need to be able to question them, because it helps yield information, the information necessary for us to be able to do our job’.

Finally, the argument was rounded off with the evidence of the fact that the measure actually worked: ‘And we've been effective about bringing to justice most of those who planned and plotted the 9/11 attacks and we've still got a lot of pressure on them’. In other texts, the results attained by measures were spelled out in an even more concrete way:

The bill Congress sent me would take away one of the most valuable tools in the war on terror – the CIA program to detain and question key terrorist leaders and operatives. This program has produced critical intelligence that has helped us prevent a number of attacks. The program helped us stop a plot to strike a U.S. Marine camp in Djibouti, a planned attack on the U.S. consulate in Karachi, a plot to hijack a passenger plane and fly it into Library Tower in Los Angeles, and a plot to crash passenger planes into Heathrow Airport or buildings in downtown London. (Bush 2008a)

The TFTP has provided critical investigative leads – more than 1550 to EU Member States – since its creation after the September 11, 2001 terrorist attacks. These leads have aided countries around the world in preventing or investigating many of the past decade's most visible and violent terrorist attacks and attempted attacks, including Bali (2002), Madrid (2004), London (2005), the liquids bomb plot against transatlantic aircraft (2006), New York's John F. Kennedy airport (2007), Germany (2007), Mumbai (2008), and Jakarta (2009). (Obama 2010b)

Apart from the fact that the operational effectiveness justification was found to be clearly embedded in various types of resonance criteria, it was also important to compare this with other types of justification in order to assess the persuasion potential of the operational effectiveness argument. Tables 2 and 3 below show the overlaps between the various types of justification patterns, on the one hand, and frame centrality, narrative fidelity and frame consistency, on the other hand. That is, the number of times where justifications were found in the same paragraph with resonance elements was counted, and this was then divided by the total number of justifications to obtain an intersection/code rate. We see in these tables that operational effectiveness, while not the most resonant, still scored quite well in relation to other justification patterns.

Table 2. Total number of overlaps (within a paragraph) between justification and resonance codes of the United States

USA	Operational effectiveness	Legality	Judicial	Defence	Prevention	Protection	Exception
Frame centrality	210	249	117	63	130	332	26
Narrative fidelity	299	153	126	61	223	249	18
Frame consistency	178	60	95	20	126	108	8
Total intersections	687	462	338	144	479	689	52
Total justification codes	591	408	172	54	446	441	62
Intersection/code rate	1.16	1.13	1.97	2.67	1.07	1.56	0.84

Table 3. Total number of overlaps (within a paragraph) between justification and resonance codes of the European Union

EU	Operational effectiveness	Legality	Judicial	Prevention	Protection
Frame centrality	255	53	50	96	103
Narrative fidelity	161	19	12	41	38
Frame consistency	65	6	2	10	42
Total intersections	481	78	64	147	183
Total justification codes	235	29	41	103	40
Intersection/code rate	2.05	2.69	1.56	1.43	4.58

Apart from the strong persuasive potential carried by the ‘operational effectiveness’ justification, the tables above also illustrate the types of frames operational effectiveness was most associated with: narrative fidelity for the United States, and frame centrality for the European Union, a pattern which roughly applied to the other types of justification as well. That is, in the European case, reference was made more to political principles and values than to narrative fidelity. In the examples below, we see that historical events, while mentioned, were not emotionally laden but simply mentioned as milestones of policy change.

Shortly after the September 11, 2001 attacks, as part of an effort to employ all available means to track terrorists and their networks, the Treasury Department initiated the TFTP … The TFTP has proven to be a powerful investigative tool that has contributed significantly to protecting U.S. citizens and other persons around the world and to safeguarding America's and other countries’ national security. The program has been instrumental in identifying and capturing terrorists and their financiers, and it has generated many leads that have been disseminated to counterterrorism experts in intelligence and law enforcement agencies around the world. (Council of the European Union 2007)

The territory of the Union was violently attacked in Madrid (March 2004) and in London (July 2005). Many other plots were recently foiled, in Austria, in Denmark, in France, in Germany and in the UK [original emphasis] … The Commission proposes that air carriers make available PNR data for flights coming to or leaving the EU (in and outbound EU flights) to specialized national units carrying out risk assessments and law enforcement and counter terrorism missions … Providing law enforcement agencies in the EU the possibility of obtaining advance passenger information and analyzing it is an important tool to detect terrorist travel and disrupt future plots. The use of this tool can, however, only be effective if it is fully respectful of the fundamental right of data protection and citizen given all due guarantees. (European Commission 2007)

This is in line with the well-established notions of difference in the use of cultural material, given cultural specificities (see Johnston (2008) on the concept of ‘deep cultural grammar’, and the argument Holland (2010) makes with reference to the importance of agency and context).

At this point, two further constructions can be invoked as additional explanations for the difference in emphasis on narrative fidelity versus political principles and values. One is the discourse of ‘normative power Europe’ as an ‘important practice of European identity construction’ (Diez 2005, p. 635), which has at heart universal norms and founding principles, among them, human rights and fundamental freedoms (pp. 618–619). The other is the ‘connecting the dots’ discourse, which has endured as a prominent frame to cope with the shock of 9/11, interpret its meaning and rationalise pragmatic solutions. In other words, while 9/11 was used, along with other events, for its resonance as a memorable and meaningful historical event, its explication as failure to connect the dots suited the pragmatism of operational effectiveness even better, thus its frequent invocation. The following is an example of this from the Bush era (the same type of argumentation can also be found in some of Obama's speeches):

Do you remember what it was like right after September the 11th around here? In press conferences and opinion pieces and in stories – that sometimes were news stories and sometimes opinion pieces – people were saying, how come they didn't see it, how come they didn't connect the dots? Do you remember what the environment was like in Washington? I do. When people were hauled up in front of Congress and members of Congress were asking questions about, how come you didn't know this, that, or the other? And then we start putting policy in place – legal policy in place to connect the dots … (Bush 2009)

Business as usual instead of state of emergency

Having presented an empirical picture of normative argumentation and having identified operational effectiveness as an important justification pattern, it is now important to place these findings in the context of the broader literature on counterterrorism discourse, in particular, with respect to the notions of security versus liberty and exceptionalism. An initial obvious conclusion is the need for more rigorous research on normative argumentation beyond the well-known ticking bomb scenario, or the three more recent categories proposed by Liese (2009) in relation to torture. As we have seen, the major ‘player’ on the argumentative field was not exception, but rather operational effectiveness. This, in turn, points to a further implication, namely the need to differentiate levels of analysis. In the same way in which exceptional situation needs to be differentiated from exception as justification, argumentation patterns need to be differentiated from justification patterns.

In this project, I differentiated between general attitudes of the speakers and actual reasons given, and labelled these ‘argumentation’ and ‘justification’ patterns. This is a differentiation that emerged from the data, especially since not all speakers engaged in actual justification. Additionally, it appeared logical to differentiate between a certain stance or positioning of the speaker towards the measure and actual rationalisation as to why it should be enforced. The most straightforward positioning typology would have been ‘acknowledgement’ and ‘denial’ (yes or no). However, the data revealed a more complex picture: admittance (explicit or implicit acknowledgement); approximation (the new measure is essentially not new, but is similar to or is the logical continuation of existing ones); minimisation of importance or damage (the speaker plays down either the actual use of the measure in practice or the negative effects it might have in terms of human rights); re-definition of the law (the speaker argues in the direction of legal change in order to accommodate the new measure); responsibility rejection (the speaker rejects personal responsibility for the implementation of the measure because he/she has followed orders); condemnation; external condemnation (when it refers to measures implemented by other countries); abandonment (the measure was at some point in time in force but will no longer be used); and denial (the speaker rejects the existence of or the wish to implement the measure in question).

If we were to categorise Liese's (2009) arguments in this enlarged context, it would appear that one is attitude – trivialising abuses, which parallels minimisation – and the other is the use of justifications – the ticking bomb scenario (prevention) and the reaffirmation of the prohibition, but not in exceptional circumstances (exception). That said, even here we can read the idea of necessity as a ‘necessary means to effectively prevent terrorist acts’ (Liese 2009, p. 29) and even more so in citations of legal acts: ‘effective activity … to thwart terrorist acts is impossible without use of a tool of the interrogation of suspects, in order to extract from them vital information known only to them and unobtainable by other methods’. (p. 29) or ‘security forces must continue to have available to them the powers they need to counter terrorism’ (p. 30) – with reference to the ticking bomb scenario. To substantiate this point, the following are US examples of minimisation accompanied by operational effectiveness and prevention:

It seems like – to make sense, if we're at war, we ought to be using tools necessary within the Constitution, on a very limited basis, a program [Terrorist Surveillance Program] that's reviewed constantly to protect us. (Bush 2006a)

There is a legal process that has been put in place for dealing with these detainees. A number of these detainees have been returned to the country of origin when we have assurances that those countries will look after them. But these enemy combatants are providing us valuable intelligence in the war on terrorism and helping us to disrupt plots and prevent attacks. Secretary Rumsfeld talked about that at length yesterday. (McClellan 2005a)

A second argument here, somewhat related to the first, concerns the notion of exceptionalism, commonly assumed in analyses of normative argumentation and counterterrorism argumentation more broadly, but relatively insignificant in the data on which this article is based. The texts analysed revealed argumentation patterns that were only rarely formulated in exceptional terms – that is, that we would need to make an exception to the rules given, for instance, the exceptional nature of the enemy. As we have seen above (Bush 2008c), the argument usually brought forth in relation to the Guantanamo issue was rather a pragmatic one. It is true that the setting of this argument and others was most often formulated in exceptional terms – a new type of war and enemy. Furthermore, the enemy and the victim were set in binary terms (Jackson 2007), while the victim was compassionate, decent, good, innocent, attributes attached to the enemy included brutal, evil, reactionary, vicious and violent. Additionally, the threat was characterised as barbaric, catastrophic, horrendous, serious or tough. There are some caveats here, however: the enemy being ‘new’ did not necessarily mean an essentially new type of otherness, if not as compared to the ‘victim’, surely as compared to enemies of the past – thus the analogies with fascism and communism, for instance, also noted by Jackson (2005) in a more elaborated analysis of the political and cultural narratives at the basis of the war on terror discourse. Related to this, even if at times formulated as involving an ‘emergency situation’, the measures were set in analogy with similar ones enforced in the past. The speakers usually went to great lengths to name historical precedents for what they were proposing (Obama 2009).

Although somewhat obvious, but for the sake of clarity, the operational effectiveness argument as such does not have exceptionality at the core; the reasoning is pragmatic and inside the law, rather than placing the ‘other’ in a grey area or outside the law. In fact, the much discussed terms of ‘unlawful combatants’ and ‘enemy combatants’ came up in the American data set in only 19 and 70 texts, respectively, as compared to other terms such as ‘extremists’ (127 texts) or ‘terrorists’ (606 texts). Furthermore, ‘unlawful combatants’ and ‘enemy combatants’ only came up in the same paragraph with torture in one, respectively, two documents as opposed to ‘terrorists’ (30 texts). See, for instance, in the following citation how, although the nature of the enemy was portrayed as exceptionally dangerous, the core of the argument was not formulated as a matter of exception to the law, but rather in pragmatic terms:

We watched the Twin Towers collapse before our eyes – and it became instantly clear that we'd entered a new world, and a dangerous new war … Another reason the terrorists have not succeeded is because our government has changed its policies – and given our military, intelligence, and law enforcement personnel the tools they need to fight this enemy and protect our people and preserve our freedoms … These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know … I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world … We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. The Department of Justice reviewed the authorized methods extensively and determined them to be lawful … But I can say the procedures were tough, and they were safe, and lawful, and necessary. Zubaydah was questioned using these procedures, and soon he began to provide information on key al Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September the 11^th . (Bush 2006b)

A third argument involves the related topic of the security versus liberty debate. The core of the ‘operational effectiveness’ justification pattern is not the usual ticking bomb scenario or the ‘morality of the lesser evil’ (Gearty 2007, p. 351), which both imply prioritising security over liberty. The following citations illustrate the use of political and legal principles and values in relation to the operational effectiveness justification pattern. Here, it is apparent that the argument did not run along the lines of trading liberty for security, but rather as a matter of fulfilling both.

I want to thank the Committee for your work in producing a balanced law reauthorizing the USA Patriot Act. Through your efforts, our agents will retain the tools necessary to wage an effective fight against terrorism, within a framework that ensures important safeguards for civil liberties and enhanced judicial and congressional oversight. (Mueller 2006)

The second task force had to do with our interrogation policy and steps that might be taken over and above the Army Field Manual to ensure, again, the effectiveness of interrogations at the same time that we are ensuring that whatever is done going forward on interrogations is done with our values in mind, as well. (Gibbs 2009)

This new, legally binding agreement reflects significant additional data privacy safeguards but still retains the effectiveness and integrity of this indispensable counterterrorism program. Protecting privacy and civil liberties is a top priority of the Obama Administration. We are determined to protect citizens of all nations while also upholding fundamental rights, using every legitimate tool available to combat terrorism that is consistent with our laws and principles. (Obama 2010b)

The Commission's role is to propose EU legislation corresponding to the needs of our common area of security and justice. Our aim is to give the relevant national services suitable tools for efficiently pursuing and prosecuting terrorists, to set up frameworks for the exchange of information. This is an area where action at the European level can bring clear benefits … In all our actions, we need to ensure that fundamental rights are fully respected, thereby striking the right balance between freedom, security and justice. The protection of fundamental rights is entrenched in European culture and is always present in our activities. (Frattini 2005)

The fight against terrorism is a fight to protect fundamental values. We cannot defend our values by sacrificing them. To defend our principles effectively against terrorism we must live by them … while improving data exchange, we should simultaneously enhance cross-border data protection. (De Vries 2006)

Extreme examples are those dealing with torture. See below instances where operational effectiveness, prevention and protection arguments were advanced, while affirming the torture ban:

There's been a lot of talk in the newspapers and on TV about a program that I put in motion to detain and question terrorists and extremists. I have put this program in place for a reason, and that is to better protect the American people. And when we find somebody who may have information regarding an – a potential attack on America, you bet we're going to detain them, and you bet we're going to question them – because the American people expect us to find out information – actionable intelligence so we can help protect them. That's our job. Secondly, this government does not torture people. You know, we stick to U.S. law and our international obligations. (Bush 2007)

The President has made it very clear that we do not condone torture. He's made it very clear to the government that we do not torture. And the President does not believe we should export torture. We remain a nation at war, in the aftermath of the September 11th attacks, and we do have an obligation to gather information from known terrorists that can help us to prevent and disrupt attacks, as well as to capture other terrorists. (McClellan 2005b)

It is true that some confirmation could be found in the texts for explicit endorsement of practices such as waterboarding; furthermore, such endorsements might have occurred in a secretive way (for more on this, see McKeown 2009, pp. 12–16). Overall, however, and with respect to public argumentation, the torture ban was constantly reaffirmed, while, of course, also pushing the pragmatic argument, as if the two could miraculously coexist. A trade-off between security and liberty was therefore not invoked when arguing for counterterrorism measures within an operational effectiveness argument. Moreover, this trade-off was not even invoked in arguments against such measures. As shown in the citation below, even the upholding of the torture ban qualified for pragmatic argumentation:

I continue to believe that brutal methods of interrogation are inconsistent with our values, undermine the rule of law, and are not effective means of obtaining information. They alienate the United States from the world, and serve as a recruitment and propaganda tool for terrorists. They increase the will of our enemies to fight against us, and endanger our troops when they are captured. The United States will not use or support these methods. (Obama 2010a)

These effects on the exception argument and the security versus liberty debate eventually point to a more fundamental impact of the pragmatic device on normative argumentation. Within this type of argumentation, human rights are affirmed, yet without engaging in extensive elaborations on how the security imperative or particular counterterrorism measures might impact on them. The counterterrorism measures which de facto impede these rights are discussed in the context of whether or not they might help the attainment of concrete goals, be they arresting suspects or disrupting terrorist networks. In this context, there is no normative argumentation as such; that is, there is no engagement in value judgements or, for that matter, competition among norms or values. Rhetoric is employed strategically to push these policy measures which, in turn, constitute contesting practices from a normative point of view. While indeed making reference to a series of resonant events, values and principles, some of which pertain to human rights, the speakers do not directly engage in normative contestation. This constitutes an interesting twist in the context of the internalisation of norms debate approached earlier in the context of coercive rhetoric. That is, internalisation is assumed and used, yet at the same time, indirectly and as a matter of practice, contested.

Conclusion

This article approached a hitherto understudied topic in counterterrorism discourse, namely argumentative speech, as it relates to measures impacting on human rights. It built on the norm establishment and norm contestation scholarship, as well as critical analyses of the war on terror and, for the first time in the area, applied frame analysis as developed in social movement theory. The analysis has shown that in order to understand the rhetorical mechanisms employed in this area of investigation, we need to move beyond classic exceptionality and ticking bomb arguments, as present as they might be, in particular, in relation to certain norms such as the torture ban. Governmental actors employ a far more complex argumentative structure. Furthermore, an important role is played by the operational effectiveness justification, which, in and of itself, does not entail the need to engage norms and values, and relativises the very notion of ‘normative’ in argumentation. We can relate this to the notion of ‘setting the terms of debate’, meaning setting the ‘criteria by which alternative arguments are judged’ (McDonald and Merefield 2010, p. 198).

In the case of the operational effectiveness justification pattern, the criteria for judging arguments are not the extent to which certain actions conform to a norm, but the extent to which these actions are likely to achieve the intended purpose. Clearly, the end goal is to ensure security, yet the short-term objective is simply to enable state institutions to ‘do their work’. And the assurance of security is not formulated as being at the expense of human rights but, paradoxically, while preserving them. As discussed in the previous section, neither the security versus liberty trade-off nor the notion of exceptionalism played a major role in the analysed texts. This, in the end, achieves nothing else but the de facto regression of the human rights norm, but not in terms of exception. While instances such as Guantanamo might still lend themselves to the paradigm of exception – after all, they apply only to ‘enemy combatants’ – this is not the case for less obvious and generally applicable measures, such as the ones impacting on data protection. It is here that the pragmatic device can leave a deeper and more permanent mark on the human rights regime, in a context in which normative argumentation is replaced with business as usual.

Acknowledgements

The author would like to thank the editors and the three anonymous reviewers for their very insightful comments and useful suggestions.

Notes

1. While the term ‘contestation’ is currently used in critical constructivism to denote the flexible meaning of norms (for more on this, see Wiener (2007)), the term ‘normative argumentation’ was chosen to emphasise two aspects of the phenomenon under study: rhetoric and strategic agency.

2. The strategic use of frames and resonance criteria does not preclude the fact that not only the target audience but also the speakers are embedded in certain cultural and social contexts. In the terminology of Bourdieu explicated by Williams (2007, p. 35), there remains a case for ‘interest’, which, however, ‘needs to be seen in the context of the fields they are constituted within’. See also Barnett's (1999, p. 7) critique of the constructivist take on actors as what he labels ‘cultural dupes’.

3. The data were collected and analysed within the project Subjecting Freedom, which investigated similarities in discourse, which would provide information on the possible emergence of a coalition of norms challengers from the perspective of the norm life cycle theory on human rights. The project was financed by the German Research Foundation.

4. For analytical purposes, the EU and the two US administration periods are referred to as ‘country’.

5. All emphases in the quotes are added.

Appendix

Table A1. Data sources (the United States)

	Websites
Institutions	George W. Bush	Barack Obama
President	http://georgewbush-whitehouse.archives.gov/, advanced search
Vice President	http://www.presidency.ucsb.edu/, types of documents	http://www.whitehouse.gov/, simple search http://www.presidency.ucsb.edu/, types of documents
White House Press Secretary
Secretary of Defence	Same website – archives for speeches and messages	http://www.defense.gov/, advanced search http://www.defense.gov/home/top-leaders/, speeches and messages, no search
Secretary of State	http://2001-2009.state.gov/, advanced search	http://www.state.gov/, simple search and by type and topic
Attorney General	http://www.justice.gov/opa/press-releases.html, browse only	http://www.justice.gov/, advanced search and by type
Secretary of Homeland Security	http://www.hsdl.org/, by type	http://www.dhs.gov/, advanced search and by type
Director of Central Intelligence	https://www.cia.gov/, advanced search and by type	https://www.cia.gov/, advanced search and by type
Director of Federal Bureau of Investigation	http://www.fbi.gov/, advanced search and by type	http://www.fbi.gov/, advanced search and by type

Table A2. Data sources (the European Union)

Institution	Website
European Council	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=76&LANG=1&cmsid=347, no search, only documents list
	http://www.european-council.europa.eu/council-meetings/conclusions?lang=en, no search, only documents list
European Council President	http://www.european-council.europa.eu/the-president.aspx?lang=en, no search, only documents list
Council of the European Union	http://europa.eu/rapid/, advanced search
	http://www.consilium.europa.eu/press/press-releases/search?lang=en, simple search
	http://register.consilium.europa.eu/servlet/driver?page=Advanced&typ=&lang=EN&fc=REGAISEN&srm=25&md=100&ssf=DATE_DOCUMENT+DESC&cmsid=639, advanced search
Council High Representative for the Common Foreign and Security Policy/ High Representative of the Union for Foreign Affairs and Security Policy	http://www.consilium.europa.eu/App/Solana/Search.aspx?id=246&lang=EN, simple search and types of documentshttp://www.consilium.europa.eu/showPage.aspx?id=1847&lang=en, documents only
Presidencies	Luxembourg 2005, http://www.eu2005.lu/en, simple search
	Austria, 2006, http://www.eu2006.at/en, simple search
	Finland, 2006, http://www.eu2006.fi/EN_GB/INDEX.HTM, advanced search not functional and types of documents
	Germany, 2007, http://www.eu2007.de/en, advanced search and types of documents
	Portugal, 2007, http://www.ue2007.pt/UE/vEN/, simple search and advanced search
	Slovenia, 2008, http://www.eu2008.si/en, advanced search and types of documents
	France, 2008, http://ue2008.fr/PFUE/lang/en/accueil.html, simple search and document type
	Czech Republic, 2009, http://www.eu2009.cz/en, advanced search and document type
	Sweden, 2009, http://www.se2009.eu/, advanced search and document type
	Spain, 2010, http://www.eu2010.es/en advanced search and document type
EU Counter-Terrorism Coordinator	http://www.consilium.europa.eu/showPage.aspx?id=1344&lang=en, types of documentshttp://www.consilium.europa.eu/showPage.aspx?id=772&lang=en, types of documents
Council General Affairs	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=72&LANG=1&cmsid=1851, documents
Council Foreign Affairs	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=78&LANG=1&cmsid=1850, documents
CFSP, CSDF	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=73&LANG=1&cmsid=359, documents
	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=80&LANG=1&cmsid=985 documents
Council Justice and Home Affairs	http://www.consilium.europa.eu/App/newsroom/loadbook.aspx?BID=86&LANG=1&cmsid=352, documents
European Commission	http://ec.europa.eu/geninfo/query/advSearch_en.jsp, advanced general search
	http://europa.eu/press_room/index_en.htm, advanced general search
	http://europa.eu/news/index_en.htm, advanced general search
European Commission President	http://ec.europa.eu/commission_2010-2014/president/index_en.htm, advanced general search and types of documents
DG External	http://ec.europa.eu/external_relations/search/googlesearch_en.htm, simple search
Relations	http://ec.europa.eu/external_relations/news/index_en.htm, documents
DG Justice, Freedom and Security	http://ec.europa.eu/justice_home/com_select_en.htm, types of documents