Chiara Caterina Gatti
MSc in Terrorism, Policing and Security at Liverpool John Moores University
Associate, Policyinstitute.net
The most dangerous illusion of contemporary liberal democracies is not their vulnerability to the blows of asymmetric terrorism, but the pretense that force can be exercised exclusively within the illuminated boundaries of ordinary law. There exists a zone of suspension, a non-place of power that we define as the Gray Zone, in which the State still holds true to legality yet persists in refusing to define parts of it that remain without codification. This architecture of silence cannot always protect the Rule of Law. The strategic paralysis afflicting the legal security regimes of some countries is born precisely here: in the refusal to codify the whole of the exception, preferring the negative aspects of operational clandestinity over the sovereign responsibility transformed into new, transparent, additional norms that delineate what has, initially, been a type of Grey Zone. (For reasons of practicality, we will not dive into the legal depths of international law but stay on the ground of codified national law.)
Sovereignty of the Shadow
Contemporary counterterrorism has transitioned from a dimension of kinetic projection against external threats to a condition of endogenous attrition within the democratic system. While conventional warfare is defined by geographic and temporal boundaries, the asymmetric threat dissolves coordinates in its hybrid and often concealed form. In this vacuum, the Gray Zone does not manifest as a contingent deviation but manifests itself as a permanent dimension of conflict. It has ceased to be a temporary anomaly – to become an operational paradigm utilized for navigating within its outer limits: the terrain where extrajudicial operations and shadow areas of intelligence are deliberate extensions of raison d’État. By maintaining these practices in an extralegal condition, some states continue abdicating their primary function: to delineate legal borders. The result is an architecture of power that is technically apt but strategically nonlegal or without sufficient practical capacity, whereas practice is always subject to higher legal provisions. Lacking any deontological basis, action can in some cases be reduced to an emergency management incapable of transforming the structural resilience of the adversary.
A Legal Stasis
When the penal code collides with the necessity of asymmetric war, democracy enters a state of cognitive stasis. The attempt to process phenomena such as transnational terrorism, which – granted – constitutes something other than war, through the lens of formal legalism does not produce aspects of justice that are capable of confronting apparent risk but rather systemic distortions that render some states’ action politically maimed while it renders how other states execute their powers seemingly limitless, in any case illegitimate. In this analysis, therefore, spaces of exception should not be interpreted as sites where rights are suspended, but as the physical manifestation of the legal inability to absorb asymmetry. When worst comes to worst, some states choose, at times, to operate “outside the world” to preserve the world, creating a fracture between formal legitimacy and operational effectiveness whereas both are never reached – in an aggregate state that remains, ideally, neither formally ethical nor unethical. This collision now extends to the digital domain: as highlighted by practices in Europe, the State exercises a control that slides into opacity precisely because it lacks a legal framework that transparently recognizes the exception without slight shifts of the boundaries in a bold yet legal manner. The result is a Grey Zone that uses algorithm, transforming defense into a silent surveillance that, while it respects the right to privacy, partially erodes institutional trust because it is not sufficiently defined and can therefore not be operated in a rules-based manner.
The Dilemma of Hypocrisy
It is imperative that the State confronts the moral core of this architecture, moving beyond human rights to interrogate the responsibility of power. Figures like Abrams, attorney of the First Amendment, and subsequent defenders of civil liberties, perfectly embody this dilemma. They admit the necessity of the exception in catastrophic scenarios, yet they fiercely oppose the formal regulation even where it is not question of jus cogens (compelling law). This could amount to a delegation to illegality: accepting that the State acts in the Shadow, provided it does so out of sight and without limits. As evidenced by Geragos, Dershowitz, or others, preferring the extralegal act committed in secret over its transparent codification, where possible, means choosing inaction or chaos to avoid staining one’s legislative conscience. The ethics of responsibility demand the opposite: if an action is deemed necessary for the good of all, it must be defined by paragraphs and rules, judged on a case-by-case basis, and applied in a way in which its limits are respected. Silence is not always a moral virtue; it is also a wall behind which power can evade ethics and accountability.
The Trap of Absolute Inertia
The failure to codify the exception is not merely a moral problem; it can be a tactical error. A trap manifests when security apparatuses, deprived of a clear framework to define part of the Grey Zone to make the latter viable, oscillate between inertia – caused by the fear of legal retribution, on the one hand, and an excess devoid of political direction, on the other. Without a norm that recognizes the specificity of asymmetric lines of conflict, a state’s action risks becoming arbitrary and unpredictable. Force must follow legal logic yet privilege strategy and goals, within limitations, over punishment. However, it must also know the boundaries of human rights. If such logic is buried in a zone of Shadow, it loses its capacity to generate and lasting strategic outcomes, after careful legal consideration: the State ends up striking blindly, and sometimes for the sake of punishment as such, where there should be due process.
Conclusion
The architecture of the Grey Zone must be part-redesigned. One cannot afford the luxury of a State that pretends not to see what its hands, to some degree, perform out of necessity. Nor should we render inoperative mechanisms that manifest as the invisible hand, as explained by Smith. The true safeguard of democracy lies not in the denial of the exception, but in the courage to define it and to act within clear boundaries. Integrating necessity, as far as it is strategic and legal, into the body of the law, in fact means fortifying the Rule of Law against arbitrary excess. Counterterrorist success will belong to those who build institutions capable of governing part of the space known as the Shadow rather than navigating it far from sight: without evidence nor operative rules. Outcome, in future, ought to be measured, in part, by the ability to turn what among the undefined can be transformed into a new legal reality, and ethically so, based on rules and in which excess becomes the exceptional yet legal, bound by the boundaries of law, restraining power, and of human rights. The law, before all, is not the problem but the key. However, it ought to encompass areas that have thus far been navigated only informally. What must in all cases be prevented, even in the face of asymmetric disadvantage, is extralegal violence.
Reading List
Cronin, Audrey K. 2009. How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns. Princeton University Press.
Dershowitz, Alan M. 2002. Why Terrorism Works: Responding to the Challenge. Yale University Press.
ECRI. 2025. Report on Racial Profiling and Algorithmic Bias in European Security Frameworks. Council of Europe.
Hoffman, Bruce. 2017. Inside Terrorism. 3rd ed. Columbia University Press.
Wilkinson, Paul. 2011. Terrorism versus Democracy: The Liberal State Response. 3rd ed. Routledge.
Note:
The opinions and views expressed in this essay are solely those of the author’s and do not represent those of Policyinstitute.net and its entire staff.
