The war against terrorism has provided all executive branches of the leading Western governments with a perfect opportunity to make some deep adjustments to society. These changes are so far-reaching that they approach a shedding of the old political regime. We in the West are witnessing a reversal of the role of criminal procedure right across the board. Its usual function—to guarantee fundamental freedoms and cap the powers of police and government—is morphing into the opposite, a suspension of constitutional order. By extending exceptional proceedings to all stages of the criminal process—from inquiry to trial—private life is being invaded and the expression of public freedoms chilled. The antiterrorist legislation is explicitly political, and the subjectivity of its approach leaves significant room for interpretation. The arbitrary nature of the antiterrorist measures comes out particularly clearly in the lists of individuals and organizations officially labeled as terrorists. Being listed means that one can legally be subjected to measures such as close-up surveillance, violation of the privacy of all means of communication from mail to electronic, and having bank accounts frozen.
These measures are common to all nations, but the United States goes one step further. It has set about reorganizing its penal system by making outright violence an integral part of the legal system. Such action affects foreign nationals accused of terrorism or U.S. citizens labeled as enemy combatants by the Pentagon, and whose constitutional guarantee that they would not be deprived of liberty without due process of law has been suspended with the approval of the U.S. Supreme Court.
The Patriot Act sanctions unlimited detention of foreign nationals suspected of taking part in or being a member of an organization listed as terrorist by the executive. The executive order of November 13, 2001, set up ad hoc military commissions to try those accused of participating in or supporting such organizations. Trials can be conducted in secret and—contrary to military law—there is no civil appeal procedure. These ad hoc military courts are a clear departure from both U.S. criminal and military law.
Over 1,200 people have been arrested and detained without charge since September 11, 2001, in most cases on no apparent grounds other than of being Arabic, Muslim, or South-East Asian in origin. Most have since been released, but some are still being held uncharged.1 These people in most cases have been deprived of the right to counsel or to challenge their detention. While in custody, they have been maltreated, tortured, and prevented from practicing their religion, all in flagrant violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States.2
It was the war in Afghanistan that provided the opportunity for prisoners to be arrested and held at Guantánamo. Around 540 people from forty-odd countries are still detained at the U.S. naval base; only 9 have been charged. According to the executive order, these prisoners will be tried by a military court specially set up for foreign nationals accused of terrorism.
The Pentagon has always been against Guantánamo detainees challenging their confinement. It has denied them prisoner of war status, and hence the possibility of exercising rights guaranteed by the Geneva Convention. The administration has been careful not to resort to U.S. criminal law, which would have placed the prisoners under the protection of the Constitution. Instead, detainees are being held without trial and generally without being charged. They have no legal status, being neither prisoners of war, common law detainees, nor political prisoners. They form an anomaly.
Violence—Cornerstone of Imperial Order
The government justified its policy by claiming that Guantánamo naval base lies outside sovereign U.S. soil. The United States obtained what it claims to be an indefinite lease of the base by force in 1902, as one of the conditions for ending its occupation of Cuba. By current governing norms of international law, this 1902 treaty is invalid as contrary to jus cogens, self-determination, and the doctrine of unequal treaties. The administration chose the base to escape the legal clutches of the U.S. courts, and so hold detainees indefinitely, entirely at the mercy of the U.S. government. The executive has granted itself extraordinary powers that go against the Constitution of the United States, and against international law.
These claims of special dispensations are repeated far and wide by the U.S. authorities in an attempt to have their self-arrogated right to violate the common rule of law accepted by international opinion. The privilege that the United States is arrogating to itself has been broadly defended by the European Union. Cuba, as a result, was forced to abandon a vote on its April 2004 resolution to the UN Commission on Human Rights demanding that the United States clarify the living conditions and legal status of detainees. After a non-action motion (one that allows a resolution to be indefinitely put aside) was prepared by the United States and its allies, including the European Union and several Latin American countries, the Cubans were obliged to withdraw the resolution.3
The resolve expressed by the United States to seize people in other countries and detain them at its pleasure, coupled with the other countries’ recognition of America’s self-appointed right, heralds a new international political order. Out-and-out violence—acts of war or policing without regard for legality—is the cornerstone of this brave new imperial order.
The same goes for the extradition and cooperation agreement between the United States and the European Union, signed in Washington on June 25, 2003.4 The possibility of having a European national handed over under these circumstances, knowing that the previously universally acknowledged legal minima for fair judicial process have been repudiated by the United States, confers an extraordinary role on the United States police/prison system in the keeping of global law and order.
Anomie Made Law
After a wait of two and a half years, the U.S. Supreme Court finally pronounced on the appeals of sixteen Guantánamo prisoners on June 28, 2004. As guarantor of the Constitution, the Supreme Court ruled on two important matters. In the first ruling in Rasul v. Bush, the petitioners were UK and Australian citizens apprehended on foreign soil in the war against terrorism. They were imprisoned at Guantánamo without charges being brought, or evidence provided, and with no way of pleading their innocence. The U.S. government claimed it can detain the petitioners indefinitely under these conditions, and that no court has jurisdiction to examine the reasons for their detention.
The question presented was Whether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Naval Base, Cuba.5
The Supreme Court replied that U.S. courts have traditionally been open to nonresidents and may test the legality of holding foreign detainees captured abroad during the hostilities and imprisoned at Guantánamo.6 The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U.S.C. §2241, which authorizes district courts, within their respective jurisdictions’ to entertain habeas applications by persons claiming to be held in violation with the…laws…of the United States. Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty.’7
The Supreme Court states that irregular combatants (a term used by the U.S. administration for non-U.S. nationals captured in Afghanistan) may challenge their confinement in a civil court by claiming that such charges do not apply to them.
The Court clearly states that detainees may contest the legality of their detention by petition, arguing that they are being held indefinitely by the executive, without trial. In other words, it would appear that the Supreme Court has not called into question the U.S. claim to punish at its total discretion those charged with the supposed offense of being illegal combatants—that is, of daring to oppose U.S. forces anywhere in the world. A trial merely gives the petitioner a chance to prove that he was engaged [neither] in combat [n]or in acts of terrorism against the United States.
The second ruling on Hamdi v. Rumsfeld affects U.S. nationals detained as enemy combatants. Before the Supreme Court judgment, the government line had been backed by the Court of Appeals for the Fourth Circuit, which ruled that the petitioner’s detention was legal. The court was in entire agreement about the fact that he did not have the chance to contest his designation as an enemy combatant.8 The judgment allowed the government to claim recent jurisprudence ratifying indefinite custody for American citizens.
The following questions were presented to the Supreme Court:
Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an enemy combatant?…
In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials an enemy combatant does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch’s asserted justification of the detention?9
The second ruling recognizes the executive’s power to incarcerate a U.S. citizen accused of terrorism without trial, and even without charges. However, unlike the Court of Appeals, the Supreme Court does not sanction the unlimited detention of prisoners. It reaffirms the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law. The Court concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.10
Justice Souter was in partial disagreement with the judgment since, according to him, the detention is illegal. He aligns himself with the majority decision by concluding that it gives the petitioner a wonderful opportunity to prove he is not an enemy combatant. Again, the notion of legality advanced in the judgment is not about the charge itself, but only about its applications, the unlimited nature of the detention, and the right to challenge its factual basis before a neutral tribunal.
A New Legal Order
The decision by the highest legal authority in the land was hailed as a victory by human rights organizations. For Steven Shapiro, director of the ACLU (American Civil Liberties Union), the rulings called back into question the administration’s argument that its actions in the war on terrorism are beyond the rule of law and unreviewable by American courts.11 The view of Human Rights Watch was that the Supreme Court’s decisions will force the Bush administration to comply with the law rather than the whims of the Executive.
But things are not unilateral. The Supreme Court’s finding does not reject the executive’s claim of power to seize and incarcerate anyone it calls a terrorist. Rather the decision rejects the claim to detain indefinitely such persons without judicial review of the basis for the detention. If the Supreme Court’s decision clearly underlines that the executive may not act outside the rule of law, the executive itself is a long way from complying with the notion of a legal state.
Though the pseudo-legal terms enemy combatants (used for U.S. nationals captured in the war against terrorism), or illegal combatants (used by the administration to justify the indefinite detention of those captured), are unknown in military or criminal law—be it American or international—the rulings do not oppose such notions. By granting anyone so charged the right to challenge the factual basis of their detention, the Supreme Court rulings are effectively endorsing an exceptional right conjured up by the executive out of the blue. The Court’s rulings clear the way for the executive’s operations; instead of opposing the anomaly they make it law.
The Supreme Court merely gives the prisoners the right to appeal to a federal judge, and does not guarantee them formal access to a lawyer, thus endorsing exceptional procedures at the detention and the trial stage. At trial it establishes a veritable regime of exceptionality, and reverses the burden of proof, for it is the prisoners challenging their detention who are to present the evidence proving they have been improperly detained—albeit under unlawful charges.
The Supreme Court may have reminded the executive it cannot by fiat abolish the most minimal notions of judicial review. But it does not oppose the government’s self-conferred legal privileges—principally the implementation of an exceptional right in its relations with the rest of the world. It confirms the legal specificity of the United States by not opposing the executive’s tendency tacitly to repudiate the Geneva Conventions and override the statutes of the International Criminal Court. It gives new legitimacy to the idea that U.S. political and judicial authorities can grant themselves global extraordinary powers where terrorism is concerned.
A Permanent Show of Strength
The point at which this claim of a novel global police power becomes enshrined in law is not set in stone. The Supreme Court’s decisions leave room for interpretation—such as the idea of a neutral court—a fact that the administration will exploit. To counter the rulings, the Pentagon decided on July 7, 2004, to institute an examination procedure that goes beyond any legal civilian or military bounds. The procedure involves military created Combatant Status Review Tribunals, specially set up to determine whether the prisoners’ detention as enemy combatants is justified. They comprise three officers to be called neutral, at least one of whom is a military judge. The prisoner is assisted by an interpreter and an officer to help him put his case together. Yet he is still denied access to a lawyer. To comply with the Supreme Court ruling these special courts must inform the prisoners of their right to challenge their detention before a federal court. The administration can therefore argue before civil courts that the plaintiffs’ demands have already been examined.
The current administration is doggedly resisting the Supreme Court’s decision and is determined to set up new exceptional procedures to counter any fallout from the ruling. The constraints the Pentagon wants to impose on the detainees’ lawyers are good examples of this process. It authorized three civil lawyers to meet Guantánamo prisoners for the first time on August 20, 2004. It also tried to force them to accept conditions such as recording their clients’ interviews and allowing their notes to be read by the prison administration. Having refused to accept the detainees’ option to be represented by civil lawyers as a right, but rather a privilege resting on its goodwill, the Pentagon has also refused to tell lawyers the reasons for their clients’ imprisonment. It has also refused to commit itself to letting lawyers see their clients again at some stage in the future.12 The lawyers have simply stopped visiting.
The Pentagon’s attempt to impose a discretionary power on legal representation for detainees is unwavering. Since February 2004, the government has allowed one of the petitioners, the U.S. national, Yaser Hamdi, to consult a lawyer, but by no means does it concede this as a right.
On August 24, 2004, four prisoners from the Guantánamo camp appeared before a military commission. Instituted by presidential decree (the executive order of November 13, 2001) the mission of these ad hoc courts is to try foreign nationals accused of terrorism—or in the Bush administration’s terminology, enemy combatants. Such courts are a departure from the entire body of U.S. criminal and military law. They are composed of five military judges appointed by the executive. The accused have access to an officially appointed military lawyer. They later get access to a civil lawyer but one whose role is limited. He does not have access to all the facts of the case, and any information classed as a defense secret is withheld from him. He also has to leave the hearing whenever such classified evidence is presented. The level of proof is drastically reduced: it is good enough that it be convincing to a reasonable person.
This mockery of legality is a real test of whether any constraints at all can be imposed upon the government. Nothing is defined in concrete terms. Procedure is made up from one day to the next, and evolves with public reaction.
In this context where the administration can create and interpret the law, legal decisions are the result of a sheer show of strength.
This creates an unstable and kaleidoscopic legal regime. The president reserves the right to appoint the judges who try any foreign nationals accused of terrorist activities in the special military commissions. If arrested on U.S. soil and suspected of being part of a terrorist organization designated as such by the attorney general, these people can be held indefinitely under the 2001 executive order. However, the Supreme Court ruling grants prisoners captured abroad the right to show before a civil court of law that the enemy or illegal combatant charges brought by the executive do not factually apply to them.
We are in a period of transition, with the executive trying to restructure the legal regime around extraordinary powers granted by Congress, or by itself. This is a process that leads to the establishment of a new kind of political regime.
The State of Emergency or Dictatorship
The Supreme Court judgment reinforces the executive’s initiatives by claiming that the detention of these persons for the duration of the particular conflict is fundamental, and is accepted as an episode of the war, that it is a consequence of the exercise of the necessary and appropriate force which Congress has authorized to be employed.13
The detentions are founded on the Congressional act that stipulates That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.14
According to Supreme Court Justice Scalia, who opposed the majority ruling, Congress’s authorization cannot be considered a simple suspension. The suspension clause in the Constitution carefully defines the conditions under which the rule of law may be suspended, as with rioting or invasion. Scalia is the most overt reactionary on the Court, a member of the right-wing Catholic Opus Dei, an organization that served for most of its shadowy existence as a central prop of the fascist Franco regime in Spain.
For Justice Scalia, the role of habeas corpus is to determine the legality of the detention pronounced by the Executive, not…to render it legal. He believes that it is not the role of a habeas corpus court to legalize an illegal detention,15 and asserts that if civil rights have to be reduced, it must be done openly and democratically as required by the Constitution, rather than by silent erosion, by a judgment of this Court. According to Justice Scalia, the true suspension of the rule of law rests not so much on vague Congressional authorization as on this ruling, which gives it a legal application. For Justice Scalia, a fierce opponent of judicial activism, the most elementary of civil rights are being suspended in the wrong way. A suspension of law should rather take place within the framework laid down by the Constitution, which limits the option to war or insurrection.
Congress’s authorization is highly abstract. It does not state precisely what the appropriate measures are that the president is to take. Nor does it mention the suspension of habeas corpus in any way, shape, or form. Without explicitly stating the conditions, this authorization hands the executive the power to grant itself extraordinary privileges. The Supreme Court ruling specifically enacts the suspension of the rule of law, and it is the Supreme Court that lays down the conditions of this suspension and makes it law. For the arch-reactionary Scalia this is sloppy thinking. Far better for Scalia would be a simple state of war and military emergency, under which habeas corpus could be suspended constitutionally without further ado.
These judgments endorse the unlawful enemy combatant and illegal combatant charges by making them a part of criminal procedure, which is again central here. They bring such charges into constitutional territory by tying their applications in with habeas corpus.
They alter the legal regime by legalizing the government’s right to arrest someone and hold him indefinitely, unless he can prove before a neutral court that the facts negate the government’s accusations. And so they reverse the burden of proof.
The executive has a very potent arsenal of legal privileges at its disposal in the war against terrorism. Their scope changes with the latest show of strength as a result of the links between laws and decrees granting the administration exceptional powers on the one hand, and rulings that make such abstractions part of the legal order of things, on the other. This transformation of the legal order is significant. Bringing the illegal charges into criminal procedure legalizes the executive’s self-proclaimed judicial powers and lays the foundations of a new kind of political regime.
The Supreme Court rulings inject pure violence into the rule of law. They provide confirmation of the interpretation of the legal theoretician, Carl Schmitt,16 for whom the exception serves as the basis of a new legal regime. The executive can thus grant itself legislative and judicial privileges that weaken the formal separation of powers. The Supreme Court’s decisions strengthen the president’s self-appointed role as judge and jury.
In the state of emergency the extent of the powers magistrates have at their disposal is a direct result of the suspension of laws limiting their privileges. The extraordinary powers of both the executive and police stem from diminishing the mechanisms that protect fundamental freedoms. The state of emergency is a state without law.
Historically, this form of government tends to suspend public and private freedoms when threatened. The procedure is not associated with any specific circumstances, nor with an interval of time. It is instituted for the duration, but its role is to become the rule. The state of emergency becomes a permanent fixture. But the notion of a generalized state of emergency is in itself a contradiction. The generalized state of emergency—as Giorgio Agamben conceives it—is not stable.17 In the war against terrorism the suspension of the rule of law is not an end in itself.
A state of emergency that takes indefinite hold, and affects all public and private spheres, brings about a political sea change. It marks an end to the formal separation of powers, and gives the executive the kind of authority allotted to judges: the authority to state and interpret the law, the authoritarian power of dictatorship.
- Marjorie Cohn, The War on Civil Liberties in the US since 11 September, speech given at the colloquium European Antiterrorist Legislation and the Protection of Human Rights, Progress Lawyers Network, Brussels, February 27, 2004.
- Group Reports Mistreatment of Detainees, New York Times, March 15, 2002.
- Guantánamo: la Commission des droits de l’ homme ne condamne pas les Etats-Unis, Le Monde, April 22, 2004.
- Jean-Claude Paye, Polizia e giustizia USA-UE, un rapporto imperiale, La rivista del manifesto, no. 52, JulyAugust 2004.
- CA DC, 321 F.3d 1134, 03-334 RASUL v. BUSH, http://www.supremecourtus.gov.
- http://www.supremecourtus.gov/opinions/03pdf/03-334.pdf, Syllabus.
- http://www.supremecourtus.gov/opinions/03pdf/03-334.pdf, Opinion, pp. 417.
- http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, Opinion of the Court, p. 1.
- CA 4, 316 F.3d 450, 03-6696 Hamdi v. Rumsfeld, http://www.supremecourtus.gov.
- http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, Opinion of the Court, p. 1.
- Satisfaction chez les défenseurs des droits de l’ homme, Le Monde, June 30, 2004.
- Washington a autorisé des avocats civils à se rendre à Guantánamo Le Monde, August 31, 2004.
- http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, Opinion of the Court.
- http://www.supremecourtus.gov/opinions/03pdf/03-6696.pdf, J. Scalia, Dissenting, p. 24.
- J. Scalia, Dissenting, p. 24.
- Carl Schmitt, La Dictature (Le Seuil, 2000).
- Giorgio Agamben, L’ état d’ exception, Le Monde, September 12, 2002.