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
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 taping 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
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-terrorists
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 legislations, they do not 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
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 heve 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 their 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
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
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 apply 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
takes place within US territory, but also abroad, since the capture itself
took place in Afghanistan, and was conducted as a police sweep rather
than as a military operation, in the absence of a formal declaration of
Aiming 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. But 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 by 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 her- 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 begin 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 e very 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 correspond 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
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 take 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 express 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
strive 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 Karl 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
The law also provide 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 establish 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’: one 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
inacts 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
privatisations 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
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
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.
(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.
translated by Patrice Riemens