New York Times

David Johnston

WASHINGTON — The Justice Department’s ethics office has recommended reversing the Bush administration and reopening nearly a dozen prisoner-abuse cases, potentially exposing Central Intelligence Agency employees and contractors to prosecution for brutal treatment of terrorism suspects, according to a person officially briefed on the matter.

The recommendation by the Office of Professional Responsibility, presented to Attorney General Eric H. Holder Jr. in recent weeks, comes as the Justice Department is about to disclose on Monday voluminous details on prisoner abuse that were gathered in 2004 by the C.I.A.’s inspector general but have never been released.

When the C.I.A. first referred its inspector general’s findings to prosecutors, they decided that none of the cases merited prosecution. But Mr. Holder’s associates say that when he took office and saw the allegations, which included the deaths of people in custody and other cases of physical or mental torment, he began to reconsider.

With the release of the details on Monday and the formal advice that at least some cases be reopened, it now seems all but certain that the appointment of a prosecutor or other concrete steps will follow, posing significant new problems for the C.I.A. It is politically awkward, too, for Mr. Holder because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda.

The advice from the Office of Professional Responsibility strengthens Mr. Holder’s hand.

The recommendation to review the closed cases, in effect renewing the inquiries, centers mainly on allegations of detainee abuse in Iraq and Afghanistan. The Justice Department report is to be made public after classified information is deleted from it.

The cases represent about half of those that were initially investigated and referred to the Justice Department by the C.I.A.’s inspector general, but were later closed. It is not known which cases might be reopened.

Mr. Holder was said to have reacted with disgust earlier this year when he first read accounts of abusive treatment of detainees in a classified version of the inspector general’s report and other materials.

In examples that have just come to light, the C.I.A. report describes how C.I.A. officers carried out mock executions and threatened at least one prisoner with a gun and a power drill. It is a violation of the federal torture statute to threaten a prisoner with imminent death.

Mr. Holder, who questioned the thoroughness of previous inquiries by the Justice Department, is expected to announce within days his decision on whether to appoint a prosecutor to conduct a new investigation; in legal circles, it is believed to be highly likely that he will go forward with a fresh criminal inquiry.

Paul Gimigliano, a C.I.A. spokesman, said Sunday that the Justice Department recommendation to reopen the cases had not been sent to the intelligence agency. He added: “Decisions on whether or not to pursue action in court were made after careful consideration by career prosecutors at the Justice Department. The C.I.A. itself brought these matters — facts and allegations alike — to the department’s attention.”

The report by the Justice Department’s ethics office has been under preparation for more than five years, and its critique of legal work on interrogations provoked bitter complaints from Attorney General Michael B. Mukasey as he was leaving office as the Bush administration’s final attorney general.

The Justice Department’s report, the most important since Mr. Holder took office, was submitted by Mary Patrice Brown, a veteran Washington federal prosecutor picked by Mr. Holder to lead the Office of Professional Responsibility earlier this year after its longtime chief, H. Marshall Jarrett, moved to another job in the Justice Department.

There has never been any public explanation of why the Justice Department decided not to bring charges in nearly two dozen abuse cases known to be referred to a team of federal prosecutors in Alexandria, Va., and in some instances not even the details of the cases have been made public.

Former government lawyers said that while some detainees died and others suffered serious abuses, prosecutors decided they would be unlikely to prevail because of problems with mishandled evidence and, in some cases, the inability to locate witnesses or even those said to be the victims.

A few of the cases are well known, like that of Manadel al-Jamadi, who died in 2003 in C.I.A. custody at Abu Ghraib prison in Iraq after he was first captured by a team of Navy Seals. Prosecutors said he probably received his fatal injuries during his capture, but lawyers for the Seals denied it.

Over the years, some Democratic lawmakers sought more details about the cases and why the Justice Department took no action. They received summaries of the number of cases under scrutiny but few facts about the episodes or the department’s decisions not to prosecute.

The cases do not center on allegations of abuse by C.I.A. officers who conducted the forceful interrogations of high-level Qaeda suspects at secret sites, although it is not out of the question that a new investigation would also examine their conduct.

That could mean a look at the case in which C.I.A. officers threatened one prisoner with a handgun and a power drill if he did not cooperate. The detainee, Abd al-Rahim al-Nashiri, was suspected as the master plotter behind the 2000 bombing of the Navy destroyer Cole.

All civilian employees of the government, including those at the C.I.A., were required to comply with guidelines for interrogations detailed in a series of legal opinions written by the Justice Department. Those opinions, since abandoned by the Obama administration, were the central focus of the Justice Department’s internal inquiry.

 It has been known that the Justice Department ethics report had criticized the authors of the legal opinions and, in some cases, would recommend referrals to local bar associations for discipline.

But the internal inquiry also examined how the opinions were carried out and how referrals of possible violations were made — a process that led ethics investigators to find misconduct serious enough to warrant renewed criminal investigation.

New York Times

William Glaberson

A Pentagon report requested by President Obama on the conditions at the Guantánamo Bay detention center concluded that the prison complies with the humane-treatment requirements of the Geneva Conventions. But it makes recommendations for improvements including increasing human contact for the prisoners, according to two government officials who have read parts of it.

The review, requested by Mr. Obama on his second day in office, is to be delivered to the White House next week.

The president’s request, made as part of a plan to close the prison within a year, was widely seen as an effort to defuse accusations that there were widespread abuses at Guantánamo, and that many detainees were suffering severe psychological effects after years of isolation.

The report, by Adm. Patrick M. Walsh, the vice chief of naval operations, describes steps that could be taken to allow detainees to speak to one another more often and to engage in group activities, the government officials said. For years, critics have said that many detainees spend as many as 23 hours a day within the confines of cement cells and often were allowed to exercise alone in fenced-off outdoor pens.

The report is being presented to a White House that some government officials have described as caught off-guard by the extreme emotions and political crosscurrents provoked by its plan to close the Guantánamo prison. Some critics said the report’s conclusions could intensify the debate about the prison, and put the Obama White House for the first time in the position of defending it.

The report came as officials separately said on Friday that the Obama administration had decided on the transfer of the first Guantánamo detainee since the president took office, a former British resident, Binyam Mohamed. Lawyers for Mr. Mohamed had drawn wide attention with accusations that he was tortured in Morocco on instructions from American intelligence agencies.

Mr. Mohamed, who is to be returned to Britain, was originally charged with plotting to detonate a radioactive “dirty bomb” inside the United States. But the Pentagon official in charge of the Bush administration’s military commission system for conducting war-crimes trials dismissed those charges in October.

Also on Friday, Attorney General Eric H. Holder Jr. announced the creation of a task force to begin reviewing the cases of the remaining 245 detainees. The group, which is to include representatives of military, intelligence and other agencies, is to be led by a career federal prosecutor, Matthew G. Olsen, who has been a senior Justice Department lawyer dealing with national security issues.

The administration’s plan to close Guantánamo includes a new effort to decide whether detainees can be released, transferred to the custody of other countries or prosecuted. In the report on the conditions at Guantánamo, Admiral Walsh reviewed many accusations of abuse that critics have made about the prison, said one Pentagon official who has seen the report.

The report concluded that the Pentagon was in compliance with the requirements of the Geneva Conventions. The review included some of the most contentious issues, including the forced feeding of hunger-striking detainees and claims that many prisoners were suffering from psychosis as a result of conditions in the detention center.

According to one official, the report noted that some detainees had difficulty communicating from cell to cell, a contention that many detainees’ lawyers have also made. The Pentagon has long insisted that no detainees are held in solitary confinement. Military officials have said instead that the prisoners are held in “single-occupancy cells.”

Some Pentagon officials have continued to press the case that the Bush administration’s approach to detainee issues — and the Guantánamo Bay prison itself — should not be abandoned. The report is likely to accelerate that behind-the-scenes struggle.

The White House had no comment Friday.

One Pentagon official, speaking on the condition of anonymity because of the sensitivities involved in challenging the White House plan to close the prison, argued that the report showed that the Bush administration had created a humane detention camp. Speaking of the remaining detainees, this official said the report showed that if the men were moved, they might “go from a humane environment to a less humane environment.”

Critics of the Guantánamo Bay detention center, which is on the grounds of the American naval base at the eastern end of Cuba, have been preparing for Admiral Walsh’s report. They said they were concerned that the new administration would use it to avoid major alterations to the Guantánamo detention camp during its final year.

Gitanjali Gutierrez, a lawyer for Guantánamo detainees at the Center for Constitutional Rights, said that she and other lawyers found that conditions have remained bleak since the start of the new administration.

Ms. Gutierrez said that a report by the rights center, to be released next week, asserts that two major Guantánamo prison buildings, known as Camp 5 and Camp 6, should be closed immediately. She said prisoners there continue to be held in isolation for as long as 24 hours a day, that psychological difficulties are treated as disciplinary infractions, and that many cells are windowless.

Ms. Gutierrez said detention camp officials have recently increased detainees’ opportunities for recreation and social interaction. She said detainees’ lawyers have been concerned that some of those moves were in anticipation of visits now being made by senior members of the new administration. The attorney general is to visit Monday.

“This is really running the risk that the review is just a big whitewash,” Ms. Gutierrez added, “and we expect more of the new administration.”

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

The atrocities of September 11, 2001 caused an unprecedented acceleration in the transformation of the corpus of criminal and criminal procedure laws in Western countries. In the months following the outrage, and sometimes within days, governments have enacted measures curtailing public and private liberties. In our opinion, a real break is taking place, because it is the very existence of the rule of law as we know it which is at stake.

These laws fit very much within a tendency that privileges procedure above law and equity in the dispensation of justice. Here, we are particularly concerned about the precedence being taken by emergency procedures. This break is so profound as to cause an upheaval of the norm as it prevailed up to now, causing the exception to become the rule. We conclude that emergency procedures are in the process of replacing the constitution as the ruling paradigm of politics.

A Break in the Tradition of Criminal Law.

Anti-terrorism legislations, whether ancient or modern, always aim to legitimise exceptional criminal procedures at all levels of the judiciary process, from the inquiry itself up to and including the final judgement. We are talking here special methods of investigation such as surveillance, mail interception, telephone tapping and electronic monitoring. These measures can nowadays be implemented even in the absence of an infraction. Suspicion of terrorist activities now also warrants exceptional preventive detention or administrative custody, even of simple witnesses, as in the United States. Anti-terrorism legislation also condones curbing communications between an accused person and her or his attorney, and, on a more general plane, allows for the setting up of specific emergency jurisdictions.

In Spain, a person accused of terrorist activities does not have the right to a lawyer of her/his own choosing. In Germany, various derogations have been enacted to customary rules regarding searches, entering property, identity checks, and arrest and imprisonment. At the level of court procedure, rules have been set to alter the nature of competent jurisdictions and to curtail the rights of the defence. Defence attorneys can for instance been denied access to procedures in the event of ‘circumstances leading to the belief’ that they may act in such a way as to thwart the instruction. The same rule allows for the lawful breach of the confidentiality of the correspondence between attorney and client.

As for its consequences for the criminal process, the new anti-terrorist laws are very much in conformity with more ancient jurisdictional tendencies. They do however vastly extent their scope. Indeed they aim not so much to restrict the fundamental liberties of certain categories of the population, but rather to encompass it as a whole. They establish a permanent and generalised surveillance and control of individuals and will preventively attack and arraign any process of class re-composition by criminalising social movements beforehand.

A Manifestation of Imperial Power.

An important feature of these recent anti-terrorist laws is that, contrary to previous legislation, they no longer stem from relatively autonomous national initiatives, but are being put forward by international bodies such as the G8, the European Council, or the European Union. This results in this type of legislation being implemented in a whole set of countries, including those which have never faced any sort of terrorist menace.

The more recent legal measures against terrorism anticipate rather than answer terrorist actions. They come in fulfilment by national states of their international obligations, and have been more specifically brought about by the demands of the United States of America. The place taken by the United States in the whole process is in fact very characteristic of the current situation, the fight against terrorism being very much constitutive of its Imperial leadership.

Taking lawful interception of (electronic) communication as an example, it is the FBI that has to a very large extent set its specifications. Regarding computer criminality, the FBI also has a lot of leverage in directing the police of most foreign states. The level of influence the United States are able to exert in shaping the anti-terrorist legislation of other governments confirms their forward role in the process of the modernisation of power on the global scale.

But anti-terrorist measures also expose another role played by the United States, viz. that of their direct super-power domination over other states.

The first component of this relationship is the privilege that has ‘de jure’ been granted to American citizenship, by attaching to it rights that are denied to other nationalities. This is particularly evident in the case of the differential legal treatment meted out to US citizens and foreigners. In terrorism cases and those related to organised crime, American courts also claim universal jurisdiction and extra-territorial competence.

The USA Patriot Act as Suspension of Foreigners’ Rights.

The USA Patriot Act of 26 October 2001 empowers the General Attorney of the United States to order the arrest and imprison any foreigner suspected of threatening national security. Such measures were further extended by the ‘Military Order’ of November 31 of the same year, authorizing to charge non-American terrorism suspects before special courts and to keep them in indefinite custody.

These two measures create zones of lawlessness. They suspend or even abolish the fundamental rights of suspects. Suspects are then totally in the hands of the executive, and no judicial control whatsoever applies to them. Thus, prisoners captured during the Afghan conflict are now shepherded in Guantanamo Bay and do not qualify for Prisoners of War status as defined by the Geneva Convention. This suspension of rights not only takes place within US territory, but also abroad, since the capture itself took place in Afghanistan, and, in the absence of a formal declaration of war, was conducted as a police sweep rather than as a military operation.

Aiming at the total abolition of protection under due process of law for arrested foreigners, such measures result in pure lawlessness towards non-American citizens. At the same time, this discriminatory mechanism doubles up with a suspension of international law, where American citizens get a privileged treatment that immunises them against arraignment before the International Penal Tribunal in The Hague when they are engaging in ‘international peace maintenance operations’.

This suspension of the due process of law is emblematic of a pure relation of power. It constitutes the legal manifestation of the application of pure violence. Furthermore it is also paired, through its inclusion in domestic American law, and through its acceptance by the United Nations or through bilateral extradition agreements, with a hegemonic function, and with the recognition by other states of the particular and dominant status that the United States claim for themselves with regard to international law.The USA Patriot Act Two as a Generalised Suspension of the Rule of Law.

Still unsatisfied with the exceptional legislation already in place, the Bush administration has drafted a new anti-terrorism law, the ‘Domestic Security Enhancement Act of 2003’ (1), which further aggravates the legal deviations of the ‘USA Patriot Act’. This new text is already known as ‘Patriot II’. Building upon the first Patriot Act, it extents existing discriminatory measures against non-citizens and further enhances the powers of the executive at the expense of the judiciary. This project is a big step forward towards the establishment of emergency rule. It generalises the system of suspension of the rights of American citizens suspected of collaboration with entities deemed to be terrorist organisations. Exceptional procedures thus become the norm.

The new act provides for an easier surveillance of American citizens by the government, and for interception and monitoring of their communications, electronic or otherwise, without judicial review. Simply applying to citizens procedures designed to fight a foreign power will suffice. Such actions need only be deemed to take place within a vaguely phrased monitoring and intelligence acquisition drive directed against ’agents of a foreign power’.

The originality of the new project as compared to its predecessor lies of course in the latitude given to the executive to subject American citizens to the kind of exceptional legislation henceforth restricted to foreigners, with the possibility of depriving them of their American citizenship as ultimate element of this emergency procedure.

Indeed, the draft legislation provides for depriving American citizens of their nationality, in case they aid or abet an organisation branded as terrorist by the Attorney General of the United States. This provision represents a clear break with previous legislation which made a sharp distinction between what applies to nationals and to non-citizens. It will result in Americans being henceforth subjected not to the law of the land, however restrictive it has become with respect to individual liberties, but to the sole whim of the executive.

Even if the draft still formally distinguishes between citizens and non-nationals, this has become meaningless in practice, since the legal protection granted to US citizens can be taken away by a mere administrative decision. For those advocating the new legislation, it would be the suspect (herself or himself) who would evidence the wish to lose citizenship by supporting a group deemed to be terrorist. The idea being that ‘one can infer her or his intention by her or his actions’, even if the person has never manifested such an intention, or applied for relinquishing American citizenship.

The State of Emergency, European Union Style.

On December 6, 2001, the European justice and interior ministers convened and adopted a ‘framework declaration’ in order to harmonise existing national legislation concerning terrorist activities. The nature of incriminating evidence in this regard is entirely political: it derives from the intentions of its author.

The crime of terrorism applies when the authors ‘actions‘ are deemed to have the destruction of the political, economic or social structures of a country as its aim’, or when ‘its aim is to gravely destabilise a country’. Concepts as ‘destabilisation or destruction of economic/ social/ political structures of a country’ makes it possible to mount a frontal attack against social movements. Similar arguments were used in the beginning of the 80s by the government of Margaret Thatcher to apply the then existing anti-terrorist legislation to the miners’ strike.

The accusation of terrorism also applies to activities ‘that intend to unduly force public bodies or an international organisation to either act or refrain to act in a particular manner’. Since every social movement tends to frighten some part of the public and to force authorities to act or not to act in a certain way, the interpretative scope of such a legislation is extremely wide indeed. Such qualifiers as ‘unduly’ and ‘gravely’ do not provide for any kind of objective definition of the incriminated actions. It will be up to the authorities to judge whether they were subjected to intolerable pressure. More generally terrorism is defined in such a way as to leave it to governments to decide who and whatever does fall in that category.

Anticipating a New ‘Social War’.

In such a context, it is easy to envisage how rallies, strikes, squatting or ‘hijacking’ public spaces, occupying infrastructure installations, or disrupting mass transit, all with the intention to put pressure to the government to enact social policies or to stop the dismantlement of the same, can easily be assimilated to terrorist acts.

Similar actions, aimed at the policies of international bodies or organisations, could meet the same treatment. The General Agreement on Trade in Services (GATS), whose objective is the complete removal of all rules that impede a total liberalisation of services, is an example of the complete dismantlement of state regulation. A spirited opposition movement fighting for the maintenance of public services, or for the regulation of certain sectors of the economy, could thus easily be branded as terrorist.

The new criminal legislation corresponds with the second phase of the establishment of an integrated structure of power at the global level: Empire. The first phase consisted in the political organisation of the global market, and the liberalisation of the movements of goods and finance capital. Labour force management remained at this stage the resort of the national states. The negotiations about liberalising investments, and about the GATS, are initiating a second phase of the process, that of globalisation of management of the workforce and of its reproduction parameters. The dismantling of the existing political set-up is the precondition for the shift in its organic composition.

The End of the Separation of Powers.

The ‘USA Patriot Act’ is still based on a dual judicial system: on the one side, some legal protection for US citizens, even if increasingly restricted; on the other, abolition of rights for non-nationals. This dual system disappears under the ‘Patriot II’ draft, since it enables the executive to strip American citizens of their nationality and to transfer them from a system of legal protection to an environment where the rule of law does not obtain.

The fight against terrorism thus marks a fundamental break in the Western political structure, which was traditionally based on a dual system: rule of law inside the national territory, and ‘’pure violence’’ abroad.

Patriot II, if adopted, will mean the legal implementation of the state of emergency, i.e. the enshrinement of lawlessness within the law.

In an article in the French daily ‘Le Monde’, Giorgio Agamben argued that the exercise of political power in the Western world was predicated on the articulation of two relatively distinct systems, that of the juridical order and that of pure violence. ‘’The Western political system appears to be a double mechanism, based on the dialectical workings of two heterogeneous and apparently antithetical components: law and pure violence. As long as both components remain separated, this dialectic can function, but as soon as the state of emergency becomes the rule, the political system itself becomes a system of death;’’ (2) That is exactly what is happening right under our eyes, as emergency rule becomes Imperial law.

There is clearly a double phenomenon at work, viz. a suspension of the rule of law, and a shift within the law of criminal procedure. Even if the suspension of the rule of law is more apparent in the United States, a similar development is taking place in European countries, as emergency legislation is being implemented.

At this juncture, the consolidation of Imperial rule demands that the restrictions on public liberties be enshrined in criminal law. Its current transformation shows that we are witnessing the end of the dual system of rule of law and pure violence.

But then, this double structure was closely related to the societal make-up of the nation-state, which applies the rule of law within what it considers to be its border, and abolishes it towards its exterior. Empire, as the new form of exercise of power at the global scale has no exterior, and hence every movement, every political or military action takes place within its borders. The distinction between internal and external, and between rule of law and pure violence, typical of the nation-state, no longer makes any sense.

The Specific Role of the United States of America.

The United States take a specific place within the imperial structure because of their position of dominance also expresses itself in the ability to project their national power on the rest of the world, which even though they may consider it as their back garden, is still an ‘abroad’ for them. The difference in legal status between US citizens and foreigners, and the suspension of the latter’s rights, bear witness to the singular position of the USA within the Imperial constellation.

Just like any nation-state, the United States have implemented a dual judicial system, based on the rule of law for citizens and on a state of non-law for foreigners. Traditionally, as with other nation-states, such a distinction between two legal dispensations articulates itself around the concept of border.

However, to the American government, ‘border’ does not mean a geographical feature. The primacy of American citizenship, the duality in the dispensation of justice is not a matter of a given territory, but concerns the planet as a whole. At stake is not only to enforce the immunity of American citizens with regard to international tribunals, which are supposed to be common jurisdictions, but also to force other states to allow American authorities the right to judge the citizens of these very countries through purpose-created emergency courts.

The most recent agreements signed between the USA and the European Union represent the recognition by the latter of the American privilege to legislate in the matter of suspension of customary law and to build up a new judicial world order based on emergency legislation. These agreements are the conclusive piece of a process whereby European jurisdictions are being materially incorporated in the system of suspension of rights devised by the United States. As a consequence, European countries have accepted, under conditions framed and imposed by the United States, to deliver their own citizens in the hands of American authorities as and when those brand them as terrorists.

The United States take a pioneer role in the institution of this new judicial order, they decide what is a case of emergency, and in its wake, in which way the prevailing norm has to be altered, especially with regard to criminal law and criminal procedure. This undoubtedly marks the reinsertion of pure violence within the international order, and represent a constitutive act of their Imperial leadership.

The State of Emergency.

The fight against terrorism causes a re-structuring of political power by way of a strengthening of the powers of the executive. Through the enactment of framework legislation, which is then being applied by way of decrees and administrative circulars or even simple lists established by the justice ministry (such as lists of purported terrorist organisations), the executive fully functions as legislative power and instrumentalises completely the judicial apparatus.

Such arrangements are typical of a state of emergency. Since the state of emergency is usually considered a political phenomenon, defining the concept in precise legal terms it is not a simple matter. As described by Carl Schmitt, it ‘’wavers in an uncertain and ambiguous fashion at the cross-road between the political and the legal’’(3). Traditionally, declaring a state of emergency answers a necessity, as put forward by the actual power, to maintain public order in the face of extraordinary circumstances, usually within a context of civil strife. The fight against terrorism is routinely described in terms of a world-wide civil strife, a war on the long haul against an enemy in need of being constantly redefined. This situation, however, differs from the habitual state of affairs. The (global) power does not so much face actual disturbances, but strives to neutralise virtual threats.

Here, the discourse bandied by the global power harbours a paradox: judicial reform is motivated by a sudden emergency, but the emergency itself is said to be of long duration. Hence the state of emergency becomes a permanent fixture. It comes to be considered as the new form of the political order, with the aim to defend democracy and human rights. Or to put it differently, citizens must accept for a long time to come the curtailment of their concrete liberties in the defence of a self-proclaimed and entirely abstract democratic order.

The fact that most of these measures are enacted as laws also proves that the global power is going for the long haul. To achieve this, it is seeking a new legitimacy whereby the people must voluntarily abide by the dismantlement of their constitutional safeguards.

The Relevance of Carl Schmitt.

For Carl Schmitt, sovereignty does not lie in the ability to impose a norm, but in a decision-making potential that is free of any normative obligation. Rather than the legal norm, it is in extraordinary legislation, ‘’where the decision making process leaves the juridical norm behind’’ that the authority of the state shines at its best. ‘’The true sovereign is who is able to decide that a given situation is an extraordinary one’’.

Contrary to Max Weber, Schmitt does not locate the state’s sovereignty in its monopoly of domination of violence, but in its monopoly of decision-making. Whereas this definition appears to be somewhat reductive in the case of the nation-state, it does perfectly fit the Imperial structure. Schmitt circumscribes the political process starting from the ‘identify friend or foe’ concept. Such an approach tends to privilege external politics as against internal governance. Such an interpretation fails to account for the organic character of sovereignty in the nation-state, of the interdependency between internal and external sovereignty, and for the interplay obtaining between various institutions and loci of power. But in the wake of the deconstruction of the nation-state and of the re-integration of its structure within a form of imperial power, Schmitt’s analyses are gaining a renewed interest.

For Schmitt, the decision as to declare a state of emergency takes place within a judicial framework. The emergency situation is not one of chaos. When the state abolishes (constitutional) law, it is allegedly in order to safeguard it. Seen in this light, the decision as to declare an emergency is first and foremost, a decision regarding the circumstances in which the norm applies. ‘’A normal situation needs to be postulated, and then, the sovereign is who is able to decide in last resort whether a normal situation obtains or not’’. With Empire, the executive power of the United States of America plays the role of the sovereign as described by Schmitt. There is indeed an embedding of the emergency regulations within a juridical order, but it is an order devoid of concrete rights.

The issues that have been raised by Schmitt are becoming relevant again in the context of the current fight against terrorism. Here too this form of government is predicated on the long haul. These dispositions also generate a new juridical order, where extraordinary procedures occupy the centre stage, and where the exception becomes the norm. Whereas the fight against terrorism leads to a suspension of rights and produces a new juridical order, it also and at the same time produces a new enemy, both in a formal and in a material sense. Unlike martial law, this transformation of the juridical order does not aim to combat something that is external to the system, but something that is inherent to it. Hence we witness an inversion of the relationship between means and aims. The designated enemy; the terrorist organisation, becomes the very instrument of the transformation of the judicial system.

State of Emergency or Dictatorship?

Giorgio Agamben’s enquiry into the Roman ‘justicium’ enabled him to establish a distinction between dictatorship and state of emergency. The Roman dictator was a special magistrate, whose extensive powers were conferred by a specific piece of legislation, in conformity with the prevailing constitutional order. Within the Roman state of emergency, the extension of the powers conferred to magistrates was simply obtained by suspending those laws that limited them. ‘’The state of emergency was therefore not a dictatorship (…) but a space void of laws, a zone of anomia, where all prevailing legal dispensations, and especially those regarding the distinction between what is public and what is private, have been suspended’’.

Agamben considers that the current forms of deviation from the rule of law indeed qualify as a state of emergency, but a closer look suggests that things are less firmly determined.

What we do see is a world-wide instrumentalisation of the judiciary by the executive. The fight against terrorism allows for the prosecution of any person suspected to be member of an organisation listed as terrorist by the ministry of justice or even by a simple officer of police. The most advanced instance of such a conflation of powers happens in the United States, where the executive has claimed for itself the authority to nominate judges to sit in military emergency courts. The concentration of powers within the executive, as it also acquires those of the judiciary, transform the president into a magistrate with very extended competences bestowed to him by all sorts of specific laws, acts, and decrees.

In France, the so-called ‘Perben Act’ has extended the powers of the police and has altered the modalities of the inquiry by augmenting the allowable time of remand custody, and the possibilities of searches and of monitoring/ surveillance in the case of ‘organised crime’. A structure of pro-active investigations has been set up, whereby police is allowed to make use of special techniques, without notification to the person suspected.

The law also provides for guilty pleading, with a procedure dubbed ‘’arraignment under preliminary admittance of guilt’’(4). This system has become extremely common in the United States. Its principle is to achieve a decrease in the indictment through a restatement of the charges brought forward (for instance by re-qualifying murder as manslaughter), this in exchange for an admission of guilt. The method considerably reinforces the supremacy of the procedure above that of the law. It formally enforces a contract of sorts between two highly unequal parties and esablishes a deal-making procedure which is foreign to the principle of justice.

At the same time as ‘guilty pleading’ is being advocated, another form of plea bargaining has been officially sanctioned in France since 1999. Called ‘composition penale’ (‘accomodation in the matter of a criminal procedure’), it makes it possible for an accused to escape indictment. First restricted to offences carrying a prison sentence of less than three years, the limit has recently been pushed to five years. Consequently it is now made to cover a large range of white collar crimes also. Hence, offences connected with financial criminality may be dealt through plea bargaining and their authors can escape indictment.

And so we see the creation of a ‘modular justice’: on the one hand guilt till proof of the contrary for those designed as such by the police apparatus, while on the other, authors of financial and economic crimes can escape scot-free. This privilege has now been formally recognised. It has become the law of the land.

Through this law, the justice ministry also introduces itself into the working of the criminal procedure process by claiming a right to intervene in individual cases, further enshrining the end of the separation of powers. The minister of justice now appears as a magistrate with extraordinary powers conferred by statute law.

The enhancement of the powers of both police and prosecution, institutions which are closely linked to the executive, means a shift of competences which used to be of the exclusive domain of judges. These extraordinary measures clearly lead to an effective suspension of fundamental freedoms and alter the nature of the rule of law. Such dispositions, as put forward in acts and decrees championed by the executive, are part and parcel of a new juridical order, that of the ‘constitution-making dictatorship’.

These dispositions also represent the end-stage of Imperial politics, resulting in a form of governance which guarantees the political and military provisions of a global management of the work force, as set up through the WTO negotiations regarding foreign investments and the privatisation of public services. Seen in this light, the state of emergency appears as a transition phase in which the work force is ‘liberated’ from its social protection. To this end, the abolition of concrete political rights is a prerequisite. Once this process has been achieved, dictatorship will be the expression of a new juridical order, one of abstract rights, and of an universal work force shorn of its historic and political particularities dating from the epoch of the nation-states.

The main objective of the current anti-terrorism legislation is not, as was the case with a previous legal framework, to exclude the social struggle movements from the realm of politics and to subject them to criminal law. Rather, it is the political intention of their authors, viz. the destabilisation of the sitting government, which leads to their criminalisation.

Such laws do not institute an order without laws. On the contrary criminal law itself becomes a constitutive feature, which divides the political in two opposites: ‘ good and evil’. The jumbling together of the domain of politics with that of criminal law enables the executive to exercise a magisterial function, and to punish any opposition it does not wish to recognise.

The setting up of any particular form of government is therefore not dependent upon a formal coherence at the level of law making, but upon the immediate relation of power, and upon the capacity of the people to resist such arrangements. Under the state of emergency there is always a formal reference to the restoration of the rule of law. Such a future, however, is not on the agenda of the powers that be.

Notes

(1)

http://www.publicintegrity.org/dataweb/download/Story_0&_020703_doc_1.pdf

(2) Giorgio Agamben, ‘L’etat d’exception’, article in Le Monde, September 12, 2002. See also his book ‘Homo Sacer, Sovereign Power and Naked Life’ (1st Italian edition: 1994∞

(3) Carl Schmitt ‘Political Theology’

(4) Pascal Biche, ‘guilty pleading’, an American model of justice, article in Liberation, November 27, 2003.