By introducing the concept of war into national law, the latest U.S. anti-terrorist law, the Military Commissions Act of 2006 (MCA), produces a turning point in the legal and political organization of the Western world. It puts an end to a form of state that succeeded in “establishing peace internally and excluding hostility as a concept of law.”1 It is the constituent act of a new form of state that establishes war as a political relation between constituted authorities and national populations.
By means of the fight against terrorism, the concept of war is introduced into criminal law. The integration of hostility into the legal order is first carried out by administrative acts relative to foreigners and justified in the name of the state of emergency. The MCA incorporates the concept of war into the law permanently. At the same time, it modifies its area of application and its content. It allows the president of the United States to designate citizens and political opponents as enemies.
A State of War
For the executive power of the United States, the fight against terrorism is a war and not an ordinary police operation. Based on this interpretation, it has put in place a group of liberty-destroying measures ostensibly justified by the state of emergency. The suppression of habeas corpus for foreigners suspected of terrorism and the establishment of a continual surveillance of the whole population are thus made possible.
Reference to a state of war has allowed the government to treat foreign “terrorists” as enemies and thereby incarcerate them administratively, without indictment or trial, until the end of the conflict. Since the war is ongoing and indeterminate, the detention of these persons is likewise indeterminate. These “enemy combatants” no longer have the protections accorded to prisoners of war. Since they “violate the laws of war,” they are not regular combatants, but “illegal combatants” who are not protected by international conventions. As a result, the foreigner designated as an “illegal enemy combatant” by the executive power is entirely subject to the arbitrariness of the latter.
The government’s view is that the attacks of September 11 were an act of war and not just a crime. This view is based on a congressional resolution of September 18, 2001, the Authorization for Use of Military Force, which grants special powers to the executive branch. It 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….”2
The interpretation that the executive makes of this resolution is the expression of a state at war, not against other nations, but against organizations or ordinary individuals that are not linked to a foreign government. This interpretation redefines the concept of war. It gives it an asymmetrical character, a “fight to the death” between the world superpower and persons designated as enemies. This new concept of war is freed from positing the existence of any real threat against the United States. It is a pure product of the subjectivity of the ruling power: the state of war exists through its proclamation. In the name of the struggle “of good against evil,” the U.S. state denies the political character of its action and, by blurring the distinction between enemy and criminal, it merges external sovereignty with internal sovereignty.
Exceeding the powers granted by the abstract “authorization” of Congress, the president promulgated an administrative order, the Military Order of November 13, 2001, which authorizes trials of foreigners suspected of terrorism, illegal enemy combatants, by special military tribunals. The terms “enemy combatant” or “illegal combatant” do not appear in the actual text of the executive’s legal order, but result from the interpretation of it made by the administration.
By passing the MCA on September 28 and 29, 2006, the House and Senate introduced the notion of illegal enemy combatant into the law. The possibility of accusing someone of being an illegal enemy combatant has been considerably enhanced since both foreigners residing in the United States and U.S. citizens can now be considered enemies. As a result, by incorporating the concept of illegal enemy combatant into the law, it is no longer just part of a state of emergency, but a permanent presence. The exception becomes the norm; it acquires a constituent character. The two houses of Congress have thus legalized a new legal and political order, one that merges acts of war and police functions by giving the administration the power to turn any U.S. citizen or any member of a foreign nation with which the United States is not at war into an enemy.
In this way, the government changes the relation between inside and outside. U.S. citizens can be enemies and placed outside the United States. By its ability to designate any inhabitant of the planet an “enemy combatant” and then make that person into an “illegal combatant”, i.e., into a criminal, the United States grants itself a police function that it can carry out worldwide. Other states, through various extradition agreements signed with the United States, have not questioned this right that the United States has unilaterally assumed. They have therefore relinquished a part of their sovereignty and given it to the United States. By the willingness to hand over their citizens to U.S. authorities at the latter’s insistence, they have recognized the imperial jurisdictional authority of the United States.
Thus, the idea of illegal enemy combatant occupies a central place in the transformation of the legal and political order. It also concerns the relation between the U.S. state and its residents as well as relations between the United States and other nations. The notion of illegal enemy combatant is situated where military law meets criminal law. It also lies at the intersection of national U.S. law and international law. As a consequence, the elaboration of this idea records the various permutations that have occurred in the exercise of U.S. sovereignty, in its relations with the rest of the world as well as its relation with its residents, be they foreign or citizen. It allows us to define the new form of the American state.
Foreign Enemy Combatant
The first use of the concepts enemy combatant or illegal combatant, within the context of the fight against terrorism, is found in the interpretation made by the administration of the executive order of November 13, 2001. The text authorizes “individuals…to be detained, and when tried, to be tried for violation of the laws of war and other applicable laws by military tribunals.”3
The phrase “individual subject to this order” refers to any person who is not a citizen of the United States and about whom there is reason to believe that he/she “is or was a member of the organization known as al-Qaida” or “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”4
This first definition creates a crime of “membership,” but limited to al Qaeda. The suspicion that a person may be a member of a criminal organization, without having committed a material crime, authorizes his/her indefinite administrative detention or trial by a military commission. The same thing is true if the attorney general suspects the person of being engaged in acts, having attempted or having had the intention to commit acts, which produced unfavorable effects on the foreign policy or political and economic system of the United States. This indeterminate margin of interpretation makes it possible to justify any arrest.
The government has extensively used the possibility of designating foreigners as illegal enemy combatants. This designation was used not only for members of al Qaeda, such as allowed by the executive order of 2001, but also all the Taliban prisoners captured during the war in Afghanistan. According to the interpretation given by the former White House counsel, Alberto Gonzales, non-respect for the Geneva Convention is justified because Afghanistan is a “failed state.”5
This notion is extended within the framework of the Combatant Status Review Tribunals set up in 2004 in order to try the Guantánamo prisoners.6 In this context, any foreigner captured as part of the anti-terrorist struggle, no matter where in the world, is an enemy combatant.
The Supreme Court decision of June 28, 2004, in Rasul v. Bush actually makes an initial rationalization of a law entirely created by the executive.7 The decision states that foreign illegal combatants have the right to contest their incrimination before a civilian jurisdiction. But, by not calling into question the unconstitutional nature of the crime, it gives recognition to this administrative order and incorporates it into jurisprudence.8
As for the possibility that a foreigner could contest the factual basis of his/her detention before a civilian jurisdiction, it was completely eliminated by the Detainee Treatment Act of 2005.9 This law removes from federal courts all competence to examine the situation of Guantánamo detainees and substitutes for it an exclusive mechanism for revising decisions made by the Combatant Status Review Tribunals.
American Enemy Combatant
The executive power immediately applied the idea of enemy combatant to Americans, in violation of the military order that it itself promulgated. Thus, the detention for three years, without charge, of Hamdi, who was captured in Afghanistan in 2001, was justified by the fact that he was designated by the administration as an illegal enemy combatant. The attorney general specified that Hamdi’s situation did not differ from that of a foreigner since he had been captured on the battlefield. However, in June 2002, the administration also used this term to justify the indefinite administrative detention of another American, Jose Padilla, captured in the United States, and refused him any protection provided by the U.S. Criminal Code or by the Geneva Conventions.
The authority granted to the executive to transform one of its own citizens into an enemy is integrated into the legal order by a Supreme Court opinion of June 28, 2004, Hamdi v. Rumsfeld. Instead of affirming that any citizen must enjoy the guarantees offered by the Constitution, the Court stipulates that there is no obstacle to designating an American citizen as an enemy. The Court refers to an earlier decision: the case Ex Parte Quirin.10 It concerned saboteurs in the service of Germany, captured in the United States during the Second World War. One of the prisoners had U.S. citizenship. The Court stipulated that certain acts, because of their nature—here violations of the laws of war—cannot be submitted to civilian courts and must be brought before military courts.
In so doing, the Court reversed11 an earlier decision, the Ex Parte Milligan case12 from 1866, in which a northern civilian was accused of “conspiracy” and “violation of the laws of war” in aid of the Confederate Army. The Court specified that the use of military jurisdictions was strictly reserved for soldiers of the Confederate Army and military or civilian citizens of an enemy state. It had clearly rejected the argument of the government that an American citizen could be an enemy. The Court added that the accused in such a case should be brought to trial for treason in a civilian court and not in a military court.
In its decision of 2004, the Supreme Court confirms the reversal in jurisprudence made in the Ex Parte Quirin decision and authorizes the government to designate one of its own citizens as an enemy. However, the Hamdi v. Rumsfeld opinion implements a change in the field of application of this crime, from a real war to the permanent and indefinite fight against terrorism. This 2004 decision, hailed by civil liberties organizations as a return of the rule of law is, in fact, a veritable coup d’etat at the judicial level since it offers to the government the possibility of calling on Congress to construct a new legal order to its specifications.
Enemy of the Government
Returning to Congress for such authority is exactly what the executive did. On October 17, 2006, President Bush signed the MCA.13 This law followed a new decision of the Supreme Court dated June 29, 2006, which made the military commissions illegal by stipulating that their structures and procedures violated the rights of the defense as contained in the military code of the United States and the Geneva Convention of 1949.14 However, the Supreme Court did not change the status of the prisoners and allowed the administration to implement other means to try the detainees.
The MCA incorporates, for the first time, the notion of illegal enemy combatant into the law and extends the scope of the crime. While the military order of November 2001, as well as the definition used by the Combatant Status Review Tribunals, only concerned foreigners captured outside the United States, the MCA authorizes naming any American or foreigner living in the United States an illegal enemy combatant. This is not only a matter of extending the geographic nature of the crime, but a qualitative mutation. By designating as enemies persons who have never left American soil and have not been to any battlefield, people who have not been involved in war or police actions, but who oppose the policies of the government from within the national territory, are deemed criminals.
For the MCA, an “illegal enemy combatant” is “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant…or a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”
Thus a directly political character is given to this crime by designating as an illegal enemy combatant anyone “engaged in or supporting hostilities against the United States.” This definition already existed in the executive order of 2001, but the context was narrowed to include only foreigners captured on the battlefield in Afghanistan. In the MCA, this element is applied anywhere in the world, including the United States, in a context that has nothing to do with a military engagement but instead, free from any territorial determination, as part of the worldwide anti-terrorist struggle. In such an abstract environment, this definition is so broad that it can be applied to social movements or actions of civil disobedience, in fact to any action that challenges the policies of the American government or allied powers. If, in light of the jurisprudence based on the Ex Parte Quirin decision, one can conclude that it is the very nature of the acts that makes the person an enemy combatant, in the context of the MCA, one must conclude that it is their political character that designates the person committing such acts as an enemy combatant.
As for the second part of the definition, it is absolutely arbitrary. One is an enemy combatant, not because one is suspected of having committed an act or of having had the intention of committing one, but only because one is named as such by the executive power. Here, the administration does not even have to justify its decision. It becomes the only possible reality.
A quick reading might lead one to suppose that it is only foreigners who could be affected by this procedure, since the Combatant Status Review Tribunals concern only non-Americans. However, the text anticipates the possibility of including Americans in illegal enemy combatant designations. New administrative tribunals are possible and there is nothing that prevents them from being applied to citizens.
Legalization of the Military Commissions
The MCA legalizes the military commissions, the special military tribunals set up by the executive order of 2001. They were intended to try foreigners captured in Afghanistan, against whom there was not the least bit of proof that would have allowed them to be brought before a civilian court. This law extends the competence of these tribunals to citizens of every country, including foreigners residing in the United States.
The rights of the defense tend to disappear entirely under the military commissions system. The accused does not have the right to choose an attorney. Instead, a military attorney is appointed by the executive power to represent the accused. These tribunals carry out a reversal in the burden of proof. It is up to the accused to prove his/her innocence. The accused can be excluded from certain phases of the trial and does not have access to the entire case file, in particular to the “evidence” presented against him/her if it is classified as a national defense secret.
The law does not grant to detainees the right to a rapid trial, even before a military commission. In this way, it extends the possibility accorded by the Patriot Act of keeping any foreigner suspected of terrorism in indefinite administrative detention. The law provides for a formal system to review decisions before a civilian court. The U.S. Court of Appeals for the District of Columbia Circuit is the only superior jurisdiction with the competence to deal with these cases. But it is only authorized to verify that the procedures followed are in compliance with the law. There is no verification of the veracity of the facts advanced in the indictment. Since this court has, on February 20, 2007, rejected any possibility for the Guantánamo prisoners to contest their detention before a civilian court, this latter formal possibility for judicial monitoring is henceforth closed.15
The military commissions can accept hearsay evidence and confessions extracted by cruel treatment. While torture is formally prohibited, a “certain degree of coercion” is permitted and it is the president who is responsible for setting the level of severity for interrogations. “Evidence” from confessions obtained in countries that practice torture is also admissible.
At the same time, the law prevents any prosecution of American agents for acts of torture or cruel treatment committed before the end of 2005. That allowed President Bush to declare, upon signing the law, that this text authorizes “the CIA to continue its program of detention and interrogation of persons suspected of terrorism in secret prisons outside the United States.”16
A System Planned for Citizens
Only foreign illegal enemy combatants can be brought before military commissions. Americans could have recourse to civilian courts to put forward a habeas corpus request. However, the MCA was designed so that these special tribunals can be applied to the whole population, including citizens. The initial draft of the law is particularly explicit in this regard.17 In view of the rapidity with which the law was passed, it still retains traces of this initial objective. Thus, among the infractions that can be tried by a military commission, there is one that punishes any person who, “in breach of an allegiance or duty to the United States,” intentionally supports actions hostile to the United States or its allies.18 Who, apart from an American citizen, can be in breach of an allegiance or duty to the United States?
The law includes definitions of infractions able to be tried before military commissions that directly target social struggles, such as the idea of an attack on protected property or the idea of pillaging, both of which transform resistance to an illegal occupation into a terrorist action. The directly political character of these crimes is also indicative of the government’s intention to have the ability to bring Americans before these commissions.
A New Imperial Political Order
The MCA 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 subjected to their arbitrary decisions.19 The agreements concluded with the United States result, consequently, in the acceptance of its laws and exceptional measures. The United States 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 U.S. executive has the right to determine the exception and make it the basis of a new legal order.
Whereas international law is no longer respected and war is presented as an ordinary police operation, American criminal law establishes a new definition of hostility that is applied at the world level. The sentencing of David Hicks, the “Australian Taliban,” on March 27, 2007, was the first issued by a military commission. It reveals the ability of the executive of the United States to make other nations legitimize the establishment of a new worldwide legal order that grants it the power to suppress habeas corpus for all non-Americans. By accepting that this Guantánamo prisoner can serve his sentence in Australia, the government of that country provides de facto acknowledgement of these exceptional jurisdictions, which violate international law as much as the U.S. and Australian Constitutions.20
The Australian government is also considering placing David Hicks under administrative control after his release.21 This measure is not provided for in the sentence delivered by the Military Commission. A person sentenced by an American exceptional jurisdiction thus enters into a global system of non-law.
The MCA 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 and 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.
Even though the military commissions have been legalized, they are only formally part of the legal tradition developed in the West, which is, in fact, a double legal system: a restricted rule of law for citizens and pure violence for foreigners.22 The objective of this administration is to apply 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.23 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 power of the United States.
- Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 2007).
- U.S. Congress, Joint Resolution of September 18, 2001, Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 224.
- President G. W. Bush’s Military Order of November 13, 2001: “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,” Section 4, http://www.law.uchicago.edu.
- President G. W. Bush’s Military Order of November 13, 2001, section 2.
- Terry Gill and Elies Van Sliedregt, “Guantánamo Bay: A Reflection on the Legal Status and Rights of Unlawful Enemy Combatants,” The Utrecht Law Review 1, no. 1 (September 2005), http://www.utrechtlawreview.org.
- U.S. Supreme Court, Rasul v. Bush CA C 321 F. 3d 1134, http://www.supremecourtus.gov.
- Jean-Claude Paye, “Guantánamo and the New Legal Order,” Monthly Review 57, no. 1 (May 2005).
- Detainee Treatment Act of 2005, December 31, 2005, http://www.justicescholars.org.
- U.S. Supreme Court, Ex Parte Quirin 317 U.S. (1942), http://www.law.umkc.edu.
- Dirt Rhodes Scholar, “Understanding Enemy Combatant Status and the Military Commissions Act,” part 1, http://stewart-rodes.blogspot.com.
- U.S. Supreme Court, Ex Parte Milligan 71 U.S. 2, http://www.law.uchicago.edu.
- S.390 Military Commissions Act of 2006, http://www.govtrack.us.
- U.S. Supreme Court, Hamdan v. Rumsfeld (no. 05–184).
- Josh White, “Guantánamo Detainees Lose Appeal,” Washington Post, February 21, 2007, http://letters.washingtonpost.com.
- William Branigin, “Bush Signs Bill Authorizing Detainee Interrogations, Military Commissions,” Washington Post, October 17, 2006.
- “The Enemy Combatant Military Commissions Act of 2006,” http://balkin.blogspot.com.
- Military Commissions Act of 2006, article 950v (b)26, http://thomas.loc.gov.
- “Draft Agreement on Extradition between the United States of America and the European Union,” Council of the European Union, 8295/1/03, Rev. 1, June 2, 2003.
- “Le tribunal militaire de Guantánamo rend sa première condamnation,” Le Monde, March 31, 2007.
- Caitlin Price, “David Hicks Could Face Australian Control Order after Guantánamo Release,” Jurist, April 1, 2007, http://jurist.law.pitt.edu.
- Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998).
- Domestic Security Enhancement Act of 2003, http://www.eff.org.