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The war on terrorism feeds a paradoxical form of discourse: an emergency demands urgent and compelling measures, yet these are part of a long-term, indeed endless, confrontation. The state of emergency becomes a lasting form of government. It comes to be seen as a new political regime that is called upon to stand firm for democracy and Human Rights. In other words, citizens must be ready to give up immediate rights and a well-defined freedom for the sake of an abstract and self-proclaimed democratic order, not only today and tomorrow, but for an indefinite period. As it suspends law and inscribes such suspension into a new legal order, war on terrorism gives legitimacy to a change in the political regime.
The war against terrorism allows power to be reorganized at the world level. The procedures of exception set up in its name become the basis of a new legal order that gives judicial powers to administrative authorities. Thus the war against terrorism is constitutive. It alters the exercise of internal and external sovereignty. It leads to an organic solidarity among various governments in the surveillance and repression of their populations. The boundary between the maintenance of order and war is blurred. Real wars are presented as police operations and control over citizens is carried out by procedures that belong to counter-espionage. In this globalized process, the United States occupies an exceptional place. It rules an imperial political structure in which the American administration has the privilege of determining the exception and inscribing it into law.
A State of War
For the executive authority of the United States, the fight against terrorism is a war and not a simple police operation. As a result of this interpretation, it has set up a group of liberticidal measures, justified in the name of a state of emergency. This situation makes possible the suppression of Habeas Corpus for foreigners suspected of terrorism and puts in place ongoing surveillance of the whole population.
The reference to a state of war has allowed the government to treat foreign “terrorists” as enemies and thus use administrative measures to incarcerate them, without indictment or trial, until the end of the conflict. Since the war is considered to be continuous for an indefinite period, the detention of these persons is indeterminate. These “enemy combatants” can no longer take advantage of the protections accorded to prisoners of war. Since they have “violated the laws of war”, they are not regular combatants, but “illegal combatants” who are not protected by international conventions. As a consequence, the foreigner named as an “illegal enemy combatant” by the executive authority is entirely subject to the arbitrary decisions of the latter.
The government’s point of view, which considers that the attacks of September 11 are an act of war and not just a crime, is based on a Congressional resolution of September 18, 2001, “The Authorization for Use of Military Force”. This resolution grants special powers to the executive authority.
The interpretation the executive authority makes of this resolution is the expression of a State that is at war, not against other nations, but against organizations that are not linked to a foreign government or against simple individuals. This interpretation redefines the concept of war. It gives it an asymmetrical character, a “fight to the death” between a world super power and persons designated as enemies. This new concept of war frees itself from the need to recognize the existence of any real threat to the American nation. It is a pure product of the subjectivity of power: the state of war exists in its proclamation.
In the name of the fight of “good against evil”, the American State denies the political character of its action and, by merging enemy and criminal, it simultaneously merges external and internal sovereignty.
A New Political Order
By passing the “Military Commissions Act” on September 28 and 29, 2006, the House and Senate introduced the concept of “illegal enemy combatant” into the law. As a result, this concept is no longer part of a state of emergency, but, in its permanence, the exception becomes the norm. It acquires a constituent character.
The two Houses of Congress thus legalized a new legal and political order that merges acts of war and police functions by granting the administration the power to transform any American citizen or any member of a foreign nation with which the USA is not at war into an enemy.
Thus the government alters the relation between internal and external. American citizens can be enemies and placed outside the American nation. Having the power to designate any inhabitant of the planet an “enemy combatant” and make that person an “illegal combatant”, that is, a criminal, the United States arrogates to itself a worldwide police function. Insofar as other States, through various extradition accords signed with the USA, do not challenge the right the latter grants to itself, they relinquish part of their sovereignty to the United States. By their willingness to hand over citizens named as “enemy combatants” to American authorities, other States acknowledge the imperial jurisdictional authority of the USA.
The Military Commissions Act carries out a transformation in the organization of the State by putting an end to the formal separation of powers. It creates a purely subjective law that it places in the hands of the executive authority. The latter can designate any person as an enemy combatant, make an administrative decision to detain, for life, any foreigner or, if it chooses to go to trial, it can appoint military judges and determine the level of coercion used in interrogations. The text legalizes physical or psychological pressure, which is really a matter of torture. It thus reintegrates pure violence into a legal context that becomes the basis of a new political order that, in turn, permanently grants the President the powers of a judge.
An Imperial Structure
The Military Commissions Act throws all foreigners suspected of terrorism into a system of pure violence. However, this does not concern only persons captured outside of American territory by the army or the CIA and foreigners residing in the United States, but also, for example, any inhabitant of the European Union. Within the context of extradition accords signed in June 2003, any resident of a member State of the European Union suspected of terrorism could be handed over to American authorities and be subjected to their arbitrary decisions. The agreements concluded with the United States result, consequently, in the acceptance of the laws and exceptional measures of this country. The USA has the power to impose its own criteria and its own special jurisdictions for trying foreigners. By relinquishing their own legality, the European countries agree to the subjection of their citizens to these procedures. The latest accords thus insert European citizens into the American system of exceptions to the law. They reveal a true imperial structure in which the American executive has the right to determine the exception and make it the basis of a new legal order.
The first trial involving the “Australian Taliban” David Hicks, which just began on March 26 before a military commission, confirms that the Military Commissions Act does indeed set up a new, world-wide legal order. By accepting that this Guantanamo prisoner can serve his sentence in Australia, the government of that country provides de facto acknowledgement of these exceptional jurisdictions.
Even though the military commissions have been legalized, they are only formally part of the legal tradition developed in the West, which is a double legal system: a restricted rule of law for citizens and pure violence for foreigners. The objective of this administration is to generalize to the whole population the procedures that allow it to seize foreigners, torture them and keep them in detention at its sole discretion. The “Domestic Security Enhancement Act” of 2003, known under the name “Patriot II”, is the earlier attempt of the government to succeed in this objective. Its aim was to remove citizenship from Americans suspected of terrorism and thus treat them as foreigners. As for the Military Commissions Act, the initial objective of the government to have the power to suppress Habeas Corpus for the whole population has not yet been attained. But having the ability to characterize any inhabitant of the planet as an enemy is a good beginning for the establishment of an imperial State that would no longer distinguish between internal and external. Every population would be entirely at the mercy of the executive authority of the United States.
Global War on Liberty
by Jean-Claude Paye
Table of Contents
INTRODUCTION
September 11
A Constitutive Act
March 11
The London Attacks
The End of The Rule of Law
Chapter 1
THE FIGHT AGAINST TERRORISM
INTHE UNITED STATES
The Patriot Act
A Strengthened Executive
Generalized Electronic Surveillance
The Proposed Patriot Act II
The Patriot Act Reauthorization
From the State of Emergency
to the Permanent State of Exception
Guantanamo, Base of A New Legal Order
Rationalization of the New Legal Order
The Incorporation of Anomie into the Law
Chapter 2
IN THE UNITED KINGDOM
The Antiterrorism Crime and Security Act 2001
The Prevention of Terrorism Bill
The End of Habeas Corpus
The Legalization of Torture
The Terrorism Act 2006
Chapter 3
THE FIGHT AGAINST TERRORISM
INTHE EUROPEAN UNION
The Joint Criminalization of Terrorism
Lists of Terrorist Organizations
Prior Methods of Criminalizing Terrorism
Italian Specificity
The Stakes In The Antiterrorist Laws
Terrorist Organization or Criminal Organization
A Change in Antiterrorist Policies
Chapter 4
THE EUROPEAN UNION:
A SPACE OF LIBERTY, SECURITY AND JUSTICE?
European Arrest Warrant
An Attack Against Social Movements
Chapter 5
SURVEILLANCE OF PRIVATE
An American Initiative
An International Promotion
The Example of Great Britain
In France
Airline Passengers Under Surveillance
Generalized Biometric Surveillance
Calling into Question The Rule of Law
Chapter 6
REORGANIZATION OF THE NATIONAL STATE
The Police: Central Body of The State
The “Perben” Law
The National State: A Structure Integrated into The Empire
The Specificity of The U.S. National State
Chapter 7
AN IMPERIAL STRUCTURE
Extraterritorial Competence of The United States
The Europol-United States Agreement: an Autonomous Negotiation
Delayed Judicial Cooperation
The Agreement On Extradition
The Bilateral Treaty Between Ireland and The USA
An Asymmetrical Relationship
Globalization of Torture
The Police Function as Basis of Imperial Sovereignty
Chapter 8
THE FIGHT AGAINST TERRORISM:
A CONSTITUTIVE
A Change in Criminal Law
Suspension of the Law
Criminal Law as Constitutive Act
State of Exception
The Exception: Basis of a New Juridical and Political Order
Legal Normativism and Decisionism
The Suspension of the Law: Constitutive Act of the Empire
Dictatorship
Sovereign Dictatorship: The Empire’s Form of Government
CONCLUSION
The End of A Double Legal System
Reversal of The Relation Between Society and State
Dictatorship: Form of Government of Good Governance
The Anticipation of A New Social War
