Translated from Gegenstandpunkt: Politische Vierteljahreszeitschrift 4-2003, Gegenstandpunkt Verlag, Munich

The American Antiterror War: The Home Front

“This unprecedented assault brought us face to face with a new enemy, and demanded that we think anew and act anew in order to protect our citizens and our values.” (Attorney General John Ashcroft before the U.S. Senate, Committee on the Judiciary, “Oversight of the Department of Justice,” May 25, 2002)

After 9/11, the U.S. government decreed the necessity of “thinking anew” the nation’s domestic security. After having thoroughly examined the measures it takes for channeling America’s civil domestic life into legal lines and controlling it, it has come to the conclusion that the institutions responsible for these tasks have performed as poorly as has the network of agencies responsible for top-secret data collection and the supervision and suppression of anti-American machinations on American soil. The government has deemed all instruments of inner security no longer adequate; they are to be modified, supplemented and perfected. Immediately after the attack on the World Trade Center and the Pentagon, the attorney general ordered the agencies under his jurisdiction to carry out a “top-to-bottom review and reorganization.” In August, 2002, the “Department of Homeland Security” (DHS) was established. Along with the Justice Department, this new agency — the third-largest of its kind in the United States — was granted jurisdiction over all activities in the domain of domestic antiterror defense.[1] Finally, the government has combined the antiterror departments of the FBI, CIA, DEA, etc. In its worldwide war on terror, the U.S. government now holds the distinction between “interior” and “exterior” security to be obsolete.

The government has justified the need for a comprehensive reform of its security policy by referring to the newness of the enemy it is facing in the wake of this “unprecedented” event. As is always the case when a state undertakes a new project, it considers the old way of doing things to be “unsatisfactory.” Looking back, government representatives accuse themselves of having been complacent in the supervision and control of the nation’s enemies; they see 9/11 as confirming their suspicion. Yet ineffectiveness and laxity are the last things these institutions could be accused of. The state’s security forces have always reliably eradicated the nation’s enemies — from the violent suppression of the beginnings of a workers’ movement in the early 1900's to the precision murders of Black Panther party members in the 1970's. And as can be seen by the way they took care of the Branch Davidians in Waco, America’s national security agencies are in no way squeamish when it comes to dealing with disobedience. Nor could it be said that the many diverse “experiences” gathered by agencies such as the FBI, CIA, and DEA are no longer of any use, it’s just that these beloved institutions must be updated for dealing with international terrorism and adapted to the challenge it presents — for this challenge is quite novel indeed.

I. In the Face of a New Enemy

Islamic holy warriors…

The “terrorist threat” comes from people who have declared the American world power to be their archenemy and have decided to put their hostility into action. The attacks on the World Trade Center and the Pentagon — the American ministry of war — make clear what these terrorists find so detestable and worthy of fighting. They see themselves as spearheading a war of global dimension against an evil power that economically and militarily rules the world, a power which suppresses and weakens their homelands, the various Arab nations of the Middle East, and estranges them from their national identity. Just as would every other nationalist, they see the lacking success of their fatherlands in competition with other nations as a disgrace that Arabs simply cannot tolerate. In their eyes, such circumstances demand resolute counterviolence. It is, however, primarily the higher sphere of national identity, i.e., the binding morality of “the people,” which these warriors in their insulted national pride see as being undermined by America’s global rule, the ubiquitous presence of its soldiers, its obscene values and godless materialism. According to them, when the morality of the Arab people is assaulted, the community’s ability to survive and assert itself is undermined. Their supranational Islamic resistance is committed to the defense and re-establishment of their religious morality, i.e., to the notional foundation of their home states; it strives for liberation from America and for the establishment of a god-fearing Arab nation.

In its struggle against America, the Islamist avant-garde sees itself at the same time as a mere executor of what their peoples have already been called upon and commanded to accomplish — a common faith in the glory of Allah and a social life corresponding to the teachings of Islam. What the Islamic nation-states all calculatingly invoke for their own national interests is something that these private warriors take very seriously. Like all nation-states, Arab state rulers treasure the fortification of civil obedience provided by religion, and grant the preachers of Allah, who deliver this sort of propaganda, a privileged position in public life. The latter are awarded the role of spiritual leaders who stand by the secular leaders and idealize their rule as an earthly vale of tears (or joy) within the godly order of things. By decorating itself with religion’s higher consecration, state rule appears ideologically in a rose-colored light. On the other hand, it thereby exposes itself to examination by the representatives of faith as to what extent, or if at all, it corresponds to God’s commandments. And it is precisely the firm belief in a government’s moral mission that drives the guardians of morality now and then to despair of the Arab nations’ secular rule. Both the poverty of the Arab people and the westernization of their mores are in the eyes of faithful Moslems nothing but indicators for the fact that the secular powers-that-be stand in violation of their religious duties. Some preachers and their followers, once they become convinced of the immorality of their rulers, are no longer content to demand that the government adhere to the nation’s moral commandments, but instead become enemies of their godless government and resolve themselves to the task of rescuing their community. According to their judgment, the governing rulers, with their western development concepts by which they seek to capitalistically open up their countries, tap into their peoples and convert them into a national basis for state power, are destroying the notional foundation of the state — the traditional faith of the people, on which they should base state rule instead by making the Koran the guiding principle of state activity. Furthermore, they are seen as betraying the power and unity of the Islamic world through their national petty jealousies and special relationship with the American world power. The holy state that such politicizing holy men seek to establish claims to be as universal as the religious world of ideas upon which it is founded: every Islamic homeland shall one day count amongst its core.

Despite all their holy wrath at their own governments, and despite the occasional actions they undertake against them, Islamists leave no doubts as to who is their main enemy: American imperialism, present everywhere with its interests and demands,spreading its foreign power over Islam’s holy land while installing various puppet regimes.This is the power they find accountable for the circumstances in their homeland. Radical militants have thus recently drawn the consequences by waging an ersatz war against the superpower, and have brought the conflict directly into the heartland of the American superpower. These attacks firstly executed a kind of just revenge on the godless, and secondly thereby proved that even the world’s most mighty superpower is not invincible, as long as one confronts it with enough determination. They thus thirdly demonstrated to the whole world that the hour of battle between the evil power and its good enemies has not only come, but has also finally begun. On behalf of Arab and other governments in the Islamic world, who should be carrying out this war and yet aren’t — be it because of their lacking willingness, their fear, inability, or corruptness — these terrorists have confronted the American world power and lit a beacon, so that every good Moslem will know what his duty is.

…and their terrorist underground battle

The terrorists’ choice of targets corresponds to the agenda of their ersatz war. From a position of military inferiority, they seek to harm the enemy in a way that is as grand, spectacular and symbolic — in short, as obviously anti-American as possible. Therefore, they have set their sights on all institutions and installations that offer a canvas upon which to paint the abstraction, “damage to America.” For this purpose it doesn’t matter if America the heavily-armed machine of repression is struck, or America the cultural-imperialistic beast that undermines the morality of the Arab peoples and weakens their will to fight. The bombing of a disco is as good a beacon as an attack on a U.S. battleship. In their struggle against American superiority, they do not differentiate between attacks on the American state power and attacks on its people. The latter are just simply made liable for the evil leaders to whom they are loyal.

In order to ensure the success of their actions, the Islamic combatants do everything possible to prevent the enemy’s national security agencies from picking up their scent while they are still in preparations for an attack. They are forced to make this kind of calculation, because they utterly lack any instruments of force comparable to America’s weapons. So if their cover is blown, then so is their mission.They know they are underground combatants on enemy territory, and don’t kid themselves about the patriotism of the American people. They don’t want to agitate and persuade these people anyway; they just want to punish them for the godlessness they spread all over the world. These combatants therefore take great pains to appear as “normal Americans” in order to not stick out while preparing future attacks. Fully aware of their own powerlessness, they focus on causing as much damage as possible with as few means as possible. A successful attack doesn’t stand for an “argument” in a private act of blackmail, nor is it a political demand. The attack itself is the whole point — a beacon that speaks for itself.

The terrorists’ approach has earned them the label “fanatics.” And indeed, they couldn’t ever successfully implement their plans without total recklessness towards their own lives. After all, in view of their powerlessness, the success of their “battle maneuvers” is wholly dependent on their willingness to disregard whether they come out alive or not. By their own personal decision, these private warriors resolve themselves to what states demand of their soldiers in wartime and what their commanding officers beat and drill into them: recklessness towards their own lives. A free decision here takes the place of a “soldier’s virtue”, demonstrating as a living fighting machine that a will fueled by the feeling of moral superiority can be a real instrument of force. In this way these people actually manage to pull off successful attacks in the very heart of the mightiest superpower’s territory, attacks which briefly rock its political and economic domestic life.

The terrorists’ declaration of war reveals something about the balance of power on the globe: obviously there is no longer any proper state able or willing to confront the United States in any fundamental way. The decision of these private combatants to “take things into their own hands” from a position of powerlessness is based upon and practically decries the fact that the vast majority of the world’s nations have resolved — more precisely: have been “persuaded” by wars, coups, etc. — to pursue their national interests while recognizing America’s superior position of power. Most of these states have from the outset constructed their respective “national cause” in a way that is, at least for the most part, compatible with the American world order. The fact that even then — or more precisely: for this reason — many a national project thereby comes to ruin gives the governments of the world more than enough fuel for Anti-Americanism, which they practice as much as they dare and think themselves capable of. However, what they definitely rule out is the step taken and recommended by the bin Ladens of the world. American imperialism’s success in subordinating other states has reduced all violent anti-imperialist resistance to this kind of private ersatz war. And this is why America is so certain that the terrorist threat could come from any corner of the world, and that it therefore reaches much farther than Al Qaeda.

II. The American Counteroffensive: Total Prevention

The United States of America has countered the terrorist private war with its own domestic antiterror agenda. Just like the terrorists, the United States takes the issue to be of fundamental significance: a hostile will coming from abroad has dared to take up a test of force with the American superpower and has called its invincibility into question — an invincibility that after all is the foundation for its worldwide activities. The terrorist attacks have exposed the fact that the American state power’s rock-solid and uncontested control over its territory actually has gaps; it is not one hundred percent master over the proceedings in its country after all. And this is the monstrosity that 9/11 represents for the government; this is the reason for its immense and urgent need to update its national security.

“Our enemies seek to remain invisible, lurking in the shadows.… Terrorists are strategic actors. They choose their targets deliberately based on the weaknesses they observe in our defenses and our preparedness.…Our society presents an almost infinite array of potential targets that can be attacked through a variety of methods.…The strategic objectives of homeland security in order of priority are to prevent terrorist attacks within the United States; reduce America’s vulnerability to terrorism; and minimize the damage and recover from attacks that do occur.” (National Strategy of Homeland Security, Executive Summary, Office of Homeland Security, July 2002)

National security agencies don’t have it easy. Instead of handing over blueprints of their attacks to the CIA before carrying them out, terrorists strive to keep their activities under wraps. On the one hand, they act very “strategically;” but at the same time, this strategy is such that it is difficult for state authorities to determine the where and how of future attacks. From the perspective of total state control, this is what makes the new challenge so unwieldy for the national security agencies’ clever methods of investigation and pursuit. Yet these agencies haven’t let this diagnosis discourage them for even a minute, and have countered the fanaticism of the terrorists with a fanaticism of their own. They are not content with pursuing terrorists as ordinary lawbreakers after they have committed their unlawful deeds; they intend to track them down and shut them down before any possible misdeed. A state like America simply cannot allow attacks on its domestic life; the credibility of its power forbids any admission of its vulnerability. However little the state might be endangered by the violence it now has to cope with, from its perspective, the relative powerlessness of the terrorist counterviolence makes it look like an especially dangerous and insidious force, posing nothing but a collection of obstacles to its own preemptive eradication. The new national security program is to remove these obstacles. Since the enemy attempts to compensate for its powerlessness by resorting to surprise attacks, the security services have to register all potential targets and circumstances in order to preempt attacks on them. Since the opponent insists on remaining undetected, neither expense nor effort can be spared to expose him before he carries out his evil deed. And since these people, despite all the common methods of blackmail and intimidation, refuse to cooperate due to their fanaticism for their cause, then the law enforcement agencies will need more freedom in dealing with suspects than the currently valid legal situation allows. The government will do everything in its power to make the incalculable fanaticism of its enemies calculable and bring the terrorists under its control. The instrument that the state thereby makes use of is its own legal system, which must now be adapted to the new demands.

Protecting all Possible Targets: A Constant State of Emergency

The DHS’s first major task has been to put together a comprehensive plan for detecting, securing and controlling all national resources which might in some way attract the interest of terrorists, be it as a target or as a somehow useful means of attack.

  • The USA has responded to the arbitrariness with which its enemies select their targets by regarding all nationally and economically relevant facilities as being potentially endangered by terrorist attacks. Seen from this angle, the entire material inventory of the nation’s capitalist system appears as a heap of “vulnerabilities,” and the current division of labor among the nation’s diverse security agencies has been declared unsuitable for protecting them. The relevant departments of the various offices and agencies have been combined into a whole new department:
    “The Department would build and maintain a comprehensive assessment of our nation’s infrastructure sectors: food, water, agriculture, health systems and emergency services, energy (electrical, nuclear, gas and oil, dams), transportation (air, road, rail, ports, waterways), information and telecommunications, banking and finance, energy, transportation, chemical, defense industry, postal and shipping, and national monuments and icons.…The Department would direct or coordinate action to protect significant vulnerabilities, particularly targets with catastrophic potential such as nuclear power plants, chemical facilities, pipelines, and ports, and would establish policy for standardized, tiered protective measures tailored to the target and rapidly adjusted to the threat.” (President George W. Bush, The Department of Homeland Security, Information Analysis and Infrastructure Protection, June 2002)
  • According to the national security services, the economy and the people are primarily endangered by the possibility that terrorists might launch attacks with chemical, biological and radioactive materials. And as the U.S. military knows from its own experience, these materials can do a good deal of damage:
    “The expertise, technology, and material needed to build the most deadly weapons known to mankind — including chemical, biological, radiological, and nuclear weapons — are spreading inexorably. If our enemies acquire these weapons, they are likely to try to use them.… Currently, chemical, biological, radiological, and nuclear detection capabilities are modest and response capabilities are dispersed throughout the country at every level of government.…the threat of terrorist attacks using chemical, biological, radiological, and nuclear weapons requires new approaches, a focused strategy, and a new organization.” (National Strategy of Homeland Security, Executive Summary)

    Based on this diagnosis, the national security services have deduced the necessity of launching an ambitious research and development program for tracking down sources of danger and harmful materials, and for developing countermeasures. The relevant activities of the diverse offices (Department of Energy, Department of Health and Human Services, National Bio-Weapons Defense Analysis Center, various environmental and agricultural research programs) have been combined and commissioned for this task.

  • Lastly, it is necessary to prepare for the eventuality that in spite of everything, an attack cannot be prevented:
    “multiple plans currently govern the federal government’s support of first responders during an incident of national significance.… Under the President’s proposal, the Department of Homeland Security will consolidate federal response plans and build a national system for incident management in cooperation with state and local government. Our federal, state, and local governments would ensure that all response personnel and organizations are properly equipped, trained, and exercised to respond to all terrorist threats and attacks in the United States. Our emergency preparedness and response efforts would also engage the private sector and the American people.” (National Strategy of Homeland Security, Executive Summary)

    The U.S. government has hereby put the country into a kind of constant state of emergency. It has been searching through all spheres of social and economic life to ensure that no measure which could serve to thwart new attacks is ignored. The government is aware of the fact that such a comprehensive system of control will burden the business world with all kinds of supplemental costs, but it will not allow expenses to become an objection to or an obstacle in the way of carrying out what is necessary. The everyday life of American capitalism is to proceed without any friction, including its cross-border and internationalized sectors. All ways and means for the successful utilization of the world are to remain fully at America’s disposal. The movement of material and living resources between nations by means of a global system of transportation, the immigration of useful labor-power from abroad, the establishment of American branches all over the world, even student exchange programs, are all to continue to proceed as they always have — just accompanied by the additional consideration that while these activities take place, terrorists cannot be given the smallest loophole for abusing American freedoms. To this end, services such as airport security, which were previously unquestioningly left to private enterprise, must now be nationalized. Financial burdens arising from the new security program are to be “shared” between the state and the private sector. As for cross-border commerce, the U.S. government will see to it that its trade partners are burdened with such costs in the form of security fees. In this way the everyday life of business and state power is to be subjected to an air-tight system of control and preventive security; capitalistic normalcy is now to take place under the permanent supervision characteristic of a state of emergency.

This is undoubtedly a very ambitious and demanding project, but it’s just the beginning. The way the state sees it, protecting national infrastructure, transportation routes, factories, airports, laboratories, etc., from America’s enemies is a merely defensive action, thus implying that the enemy is already actively carrying out its misdeeds on the nation’s home soil. The further line of attack in the nation’s domestic antiterror war consists in going after these terrorists themselves.

Total Information for Total Access

The U.S. government has concluded that the first major obstacle in tracking down terrorists is the fact that its agencies know too little about them:

“The review found that America’s ability to detect and prevent terrorism has been undermined significantly by restrictions that limit the intelligence and law enforcement communities’ access to, and sharing of, our most valuable resource in this new war on terrorism. That resource is information.” (Ashcroft)

So the first step in terrorist prevention is called “intelligence gathering.” The state has declared a need for methods of picking out America’s enemies from among the normal citizenry, since these terrorists blend in with and conceal themselves as normal citizens. In contrast to other enemies of state, terrorists don’t publicly advertise their cause. And since they do not publicly display their political convictions, they lack the informative characteristic that makes both left-wing and right-wing political organizations such comparatively easy targets.[2] The state has therefore set its sights on people who appear to be true-blue Americans, analyzes this image for indicators as to whether such people are in fact the opposite of what they seem, and then summarizes the findings in order to construct a total picture of the respective person under review. Since in the right context — the context of suspicion of terror — just about everything that America’s inhabitants are and do can be regarded as a potential indicator of terrorist machinations, the national security agencies have got their hands full. They must search through all kinds of personal files, looking for possible traces of hostile intentions concealed beneath wholly normal activities. From this perspective, even the sniffing out of dissenting opinions has its place: records of borrowed books, cultural interests, personal connections, etc., have been redefined as sources of evidence of suspicious personal characteristics; the security agencies are to correspondingly “gather” this information. The United States has named this prong of its antiterror war the “Total Information Awareness” project, and every good American is called upon to do his part by reporting any and all “conspicuous behavior.”[3]

The clues gathered by the national security services serve to construct “personal and behavioral profiles.” The very first “characteristic” that one needs in order to make it into the category of potential terrorist is thus not coincidentally one’s racial and national identity. After all, the terrorists at issue have declared their war on America as Arabs; so every member of this ethnic group has already fulfilled one criterion for being a potential terrorist. In this context the state has made out another necessity: centralized access to all material already gathered by the various national security agencies on their respective clientele. In the course of investigations of 9/11, it was discovered that pieces of information on the attackers had been lying around in the various security agencies. If these bits of information had been combined, they would have added up to the result, “potential terrorist.” It doesn’t trouble the authorities that this is an ex-post construction. By consistently applying this diagnosis, they have abandoned the principle that collection of personal data is solely to serve the purposes of the agency that ascertains the data, and that this data may only be made available for other purposes under special permission. The state now denounces the fact that diverse agencies — from the DMV to the FBI and IRS — had previously acquired “information” on persons in accordance with their respective purposes and kept it to themselves being an obstruction of the state’s intelligence purposes. All agencies have now been obligated to pass along all their data.

Such information sharing is above all required in cases where inhabitants of the American cradle of freedom have broken the law. Since as part of their conspirational activities terrorists steal cars, counterfeit passports, book flights and open bank accounts under fake names, deal drugs, etc., then the national security agencies’ new way of thinking demands that from now on law enforcement agencies handle every car thief as a possible terrorist. Never again shall the state deny itself access to information that could be potentially relevant for preventing terrorism just because this information happens to apply to other, unrelated offenses, even if it is a mere speeding ticket or a failure to register with the police.

“Intelligence gathering was artificially segregated from law enforcement, effectively barring intelligence and law enforcement communities from integrating their resources.…The passage of the USA-PATRIOT Act made significant strides toward fostering information sharing and updating our badly outmoded information-gathering tools. The Patriot Act gave law enforcement agencies greater freedom to share information and to coordinate our campaign against terrorism. Prosecutors can now share with intelligence agents information about terrorists gathered through grand jury proceedings and criminal wiretaps. The intelligence community now has greater flexibility to coordinate their anti-terrorism efforts with our law enforcement agencies.” (Ashcroft)

Of course, law enforcement agencies always had this “freedom” if there was a need for it; but now this need has become a permanent one, and information sharing has become an obligation.

This comprehensive “coordination” is made effective through the correspondingly oriented and coordinated analysis of all relevant information. The necessary technology already exists;[4] all that is missing is the proper organization for purposefully implementing it:

“Currently, the U.S. government has no institution primarily dedicated to analyzing systematically all information and intelligence on potential terrorist threats within the United States, such as the Central Intelligence Agency performs regarding terrorist threats abroad.” (Bush, The Department of Homeland Security)

The DHS fills this gap. It fuses the reconnaissance activities of the diverse intelligence agencies and analyzes the gathered intelligence from the perspective of terror prevention. In order to create a “foundation” for this activity, the United States has prescribed for itself a complete overhaul of its security “services.” Every law enforcement agency, all the way down to the ordinary police station, has been commanded to follow clues concerning potential connections to terrorism in the course of their normal duties. Task forces have been formed at every state level in order to process these clues and reports. The reorientation of the national system of criminal investigation and law enforcement has been topped off by integrating counterintelligence with the “normal” national police force — the FBI — for the purpose of preventing terrorism. Even border control has been included in this reorganization, since foreigners naturally justify particular suspicion; responsibilities of the treasury, justice, agriculture and transportation departments in matters of border security have been combined into one new unified department; even the Coast Guard is included. All visitors to the United States — with no exceptions made for Arab spouses of Canadian diplomats — are to be subsumed and sorted under the suspicious aspects of race, ethnicity and political convictions now in effect, and will be dealt with accordingly. Flight and other transportation companies have been instructed to hand over their passenger lists to the new national security agency. And so on…

Terror Prevention: New grounds for detainment

Tracking down terrorists is the first step towards arresting them. When they have then been taken into custody, the following question arises for the authorities: How do we deal with them? This question may have long since been answered in the United States in its criminal law and corresponding code of criminal procedure; yet for this new kind of criminal, the current laws are insufficient and thus in need of reform.

First of all, it is not enough for the government to merely accuse people arrested for suspicion of terrorist activities of “the preparation of a criminal offense,” and convict them accordingly. Because such detainees might prove useful as instruments for uncovering and preventing terrorist attacks planned by other persons, the state is seeking to detain them regardless of the length of any eventual punishment, or whether the charges can actually be proved. On the one hand, this view isn’t alien to criminal law. From bribery to intimidation, all kinds of “offers” are used to encourage the object of the state’s curiosity to spit out desired information. But these instruments are far too weak for the U.S. security agencies in their dealings with people they connect with terrorist activities. They have now declared the purpose of extracting useful information itself as grounds for arresting and detaining people until the ascertaining authority feels it has found out all the facts and connections it is looking for. And in contrast to the previous legal code, they may do so without having ascertained any connection to a suspected crime. It is for this reason that immediately after 9/11, the FBI scrutinized all male U.S. inhabitants of Arab origin and arrested a few thousand of them. Since then, an unknown number have been detained under some trivial legal pretext or just simply without any reasons having been given at all. The detainees have no access to a lawyer and their location has been kept a secret even from their relatives. American courts have in most instances confirmed the legality of the agencies’ actions given the “special sort of criminals” at issue and the dangers they represent. The same goes for the use of “intense interrogation techniques” for the purpose of extracting desired information. In this way even the independent legislative authorities have made clear that the state has every freedom to imprison and utilize individuals as sources of information or as unknowing contributors independent of any and all criminal suspicion.

By its methods of extracting statements relevant to terrorism from detainees, the constitutional state shows what is possible through the rule of law. Sticking to legal form, it disregards the rights of the defendant, rights by which the administration of justice in other cases recognizes the free, legal person even when taking him to justice. Now, people can be detained for reasons of public investigation and national security — regardless of whether they have actually been accused of any corresponding offenses. For others whose guilt of terrorist activities passes as proven, a whole new jurisdiction has been established that pushes through proceedings and renders judgments which intentionally lack all the characteristics of due process: the right to a public trial, access to legal counsel, etc. This is how the state makes clear that in this case it is not punishing criminals, but eradicating enemies of the state. This will to destruction grants terrorist combatants, and people that it takes to be such, neither the status of foreign prisoners of war, nor of domestic criminals. As “unlawful combatants,” they have no rights at all.

Lawlessness as a Legal Construct

For the implementation of its new agenda, the American government is making use of its legislative authority — and what do you know, it works! By changing some articles and having a few of the decisions modified by the Supreme Court, which for its part has recognized the mood of the times, it has turned the American legal system into a suitable instrument for the war on terror. Any obstructive considerations inherent in the law must give way to this new goal. When the prevention of terrorist crimes is at stake, the principle that an arrest can only be made in connection with a suspected crime is simply inexpedient. Likewise, the legal principle of presumption of innocence and the obligation to furnish proof of the attributability of an offense before the court flies in the face of the goal of preventively eliminating any and all terrorist threats. For this goal, a mere suspicion on whatever grounds is sufficient to convict people and lock them away. Otherwise, there might be someone left on the loose who could endanger the highest object of protection known to law: the continued existence of the legislative power itself. Asking beforehand whether a suspicion is actually correct and going through all the legal inconveniences of examining it would constitute an act of negligence on the part of the state, one that would only give more breathing room to such machinations.

In reshaping the legal system, the Bush administration is acting in accordance with the logic of the war it is waging on the terrorists. And in war, a higher law reigns; one that overarches and partially suspends the regulations and criminal procedures created for the times of peace kept under control by the national monopolist on force. If the state as such is endangered, or rather if it sees itself endangered, then martial law reigns. In accordance with this definition of the circumstances, a state modifies the laws and the manner of their enforcement for the sake of the endangered state power’s self-assertion. It redefines the facts constituting an offense and adapts the rules of procedure to the ideal of “legal expediency.”The American superpower has thus created an entirely new legal status for the new enemy, the terrorist. It has taken the old Wild West manner of hyperbolizing criminals as “outlaws” literally: according to the attorney general, people who unofficially combat America place themselves, and thus literally stand, outside the law. Laws, penalties and rules of criminal procedure are made for citizens who respect the law in principle. Their freedom consists in being subjected to such laws — a privilege that unlawful combatants do not deserve. The latter will not be subjected to law as would your standard lawbreaking citizen, who — all the way to death row — is respected as a legal person in getting a “fair trial,” access to legal counsel and the privilege of witnesses. Instead, they are combated as enemies of the state. Disregard for the person, i.e., for the rights that go along with this status, is entirely appropriate for an “outlaw,” since he hasn’t deserved to be treated and convicted in accordance with the normally valid legal procedures. In order to eliminate the danger he represents, i.e., to eradicate the bearer of evil will, special tribunals are called for, which empower the authorities to treat suspected terrorists however they deem useful.[5]

For the purpose of eradicating its enemies, the Bush administration has created a so-called parallel legal system valid solely for terrorists; in no way does this modify the peacetime law valid for American citizens, and thus change the customary relationship between citizen and state. Yet this new practice isn’t as detached from everyday police and judicial business as the term “parallel law” would have it. The national security agencies’ constant and omnipresent information gathering and investigative activities are first of all aimed at sorting out the guilty from the innocent and deciding who can be counted among the suspects and who can be taken off the list. This changes the country’s general legal situation and affects anyone who has the bad luck of having attracted the attention of the national security agencies for whatever reasons.


[1] George W. Bush himself has compared the establishment of DHS to Truman’s creation of the Department of Defense and the National Security Council for the purpose of arming the country against the Russians. Today, America needs “similar dramatic reforms to secure our people at home” (Radio Address by the President to the Nation, June 8, 2002).

[2] Critics that denounce the new security craze as signaling a “return to McCarthyism” and the fight against terror as a mere pretext are missing the point. Today just as ever, leftist intellectuals, actors, etc., disturb the state in a somewhat different way than do the terrorists. Being part of the “intellectual elite”, these people exercise an anti-American, subversive influence on public opinion and for this reason must be stopped. By spying on, intimidating and even banning them from their careers, McCarthy made clear to them, on penalty of the loss of their bourgeois livelihood, that un-American thinking is a danger to their own lives. Their dear colleagues in the entertainment industry took care of the rest, and the deterrent effect on all those who might have taken a fancy to such thoughts also worked as intended. This strategy is not the same as the one the American state is pursuing against its new enemies. First of all, the state simply assumes that no American could possibly take a fancy to what the latter have to say — exceptions prove the rule. And secondly, the state does not plan to obstruct its new enemies from exercising some kind of political influence that they don’t even want, it simply intends to eradicate them. Precisely for this reason, it is a matter of course that the state once again has people with dissenting convictions in its sights. These people, by undermining national awareness against the enemy, can be seen as potential promoters of terrorism. Thus they need not even be suspected of planting bombs, nor of having an intellectual closeness with Islamic terrorism. The state takes any protests denouncing the violation of American citizens’ rights to freedom and security as weakening the state’s freedom to do as it sees fit. It then derives the presence of un-American convictions on the part of people to whom national security is of so little value.

[3] After the compelled name change to “Terrorism Information Awareness Office”, and about a year of data gathering, the Department of Defense had to shut the office down, as Congress no longer approved financing for it. According to prominent delegates, this office’s infringement on the citizens’ private sphere went just a bit too far for Congress’s taste. Perhaps doubts arose as to the usefulness of expensive personal dossiers after the reformed national security services have gotten on their feet again.

[4] “Information systems contribute to every aspect of homeland security. Although American information technology is the most advanced in the world, our country’s information systems have not adequately supported the homeland security mission. Databases used for federal law enforcement, immigration, intelligence, public health surveillance, and emergency management have not been connected in ways that allow us to comprehend where information gaps or redundancies exist.” (Executive Summary)

[5] In 2003, a U.S. court rejected a plea from an inmate at the detention center in Guantánamo, who demanded the rights valid for inmates in the United States. The court originally justified this rejection with reference to the fact that the prison in Guantánamo is not located on American soil, and that U.S. law therefore does not apply there. In fact, it is precisely because of this judicial advantage that the prison was established in Cuba in the first place. The Supreme Court has in the meantime judged that President Bush does indeed have the right to hold suspected terrorists without trial, but that the detainees in Guantánamo could have recourse to United States courts. In the meantime, this issue has become an object of dispute between the executive and the judicial branch — not concerning the appropriate treatment of prisoners, but concerning the appropriate distribution of authority.

© GegenStandpunkt 2005