Friday, January 13, 2012
S S Raza
University of Hawaii at Manoa
Many in the Muslim World entertained the hope that after a decade of fighting the War on Terror and killing Osama bin Laden, the United State would wind down the war. However, the passage of National Defense Authorization Act 2011-2010 has renewed fears regarding the continuity of the war. Whether the act will end or extend the war on terror is now a matter of fresh debate.
To scholars of critical international relations, the act evokes the logic of state of exception. As Giorgio Agamben has put it the emergency powers gained by the executive during wartime often tend to survive the end of war (Agamben 2005, 6–7). Recalling Carl Schmitt and Hannah Arendt, Agamben in his brief book State of Exception writes:
Faced with the unstoppable progression of what has been called a ‘global civil war,’ the state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics. This transformation of a provisional and exceptional measure into a technique of government threatens radically to alter—in fact, has already palpably altered—the structure and meaning of the traditional distinction between constitutional forms (Agamben 2005, 2).
NDAA, ironically passed on the 220th anniversary of the Bill of Rights, has not only extended the life of Guantanamo, but has also “codified” the vast emergency powers of the executive to a) deploy secret military missions within the United States, b) to collect intelligence information on the people, c) to indefinitely detain persons (both American citizens and non-Americans) in military custody without granting them the right to trial, and d) to permanently incapacitate persons suspected of terrorist activities (such as how the U.S. dealt with Anwer Al-awlaki). Here is a brief report on the NDAA by Democracy-Now.
In the backdrop of the theory of state of exception, NDAA reminded me of two academic observations. First, Prof. Charles H. Kennedy, in his 2004 essay, The Creation and Development of Pakistan’s Anti-terrorism Regime, 1997-2002, after highlighting the fallouts of Pakistan’s anti-terrorism regime--emergency laws, special courts (including the Anti-terrorism and martial courts) and the practice of speedy justice—concludes: “The tortured history of Pakistan’s anti-terrorism regime should give pause to prospective latecomers to the process (e.g., the United States, Britain, EU, Australia)” (Kennedy 2004, 411). No doubt there is much for the West to learn from “the tortured history” of the juridical system of the state of exception in Pakistan, however, Kennedy’s temporally limited research left me with an intriguing question: Is the West a latecomer in introducing exceptional laws and juridical apparatus? To make this argument, I think, Kennedy glosses over a crucial legal genealogy. What is today termed as an anti-terrorism legal regime in Pakistan, and a warning for the West to pause from initiating something like it, was, in fact, initiated by Great Britain in early 19th century colonial India. Recently, with the creation of anti-terrorism regimes in the United Kingdom and the United States, the legacy of the state of exception has simply come a full circle. I return to instantiate this point in a moment.
The second observation comes from Cardozo Professor of Jurisprudence, George P. Flectcher in his article, Ambivalence About Treason. After John Walker Lindh was tried for high treason, Prof. Fletcher, argued that although the law of high treason formally exists in the American constitutional order, the American liberal political and juridical culture is ambivalent toward it:
The mood now is better characterized as ambivalence. We supposedly hate treason, but we are unsure whether and how we should punish it. The last time the government prosecuted acts of adhering to the enemy was during World War II. Our contemporary ambivalence is expressed in opting for restrictive interpretations of key elements in the crime. […] Why are we so ambivalent about treason? Why threaten the supreme penalty and then look for excuses not to apply the law? My thesis is that because of its feudal origins, treason no longer conforms to our shared assumptions about the liberal nature and purpose of criminal law. Our ambivalence about treason corresponds to legislative moves made in other countries to convert the offense into a crime with liberal contours. (Fletcher 2003, 1612–1613)
While it might be true that in American juridical discourse there prevails ambivalence to the law of high treason, the reason for this ambivalence is not necessarily the liberal juridical culture. In fact, the ambivalence is because the so-called “key elements” of the law of high treason have migrated to the anti-terrorism legal regime. The legislative and executive instruments like FEMA, UMFA, the Patriot Act and NDAA have adopted those key elements.
For instance, allegiance to the State is one of the key elements of the law of high treason and is now part of the Patriot Act and the NDAA. The United States Criminal Code provides that in order to be guilty of high treason one must “owe allegiance to the United States” (18 U.S.C. #2381, 1976). Allegiance can be due to citizenship or physical presence in the state or any other qualified relationship with the state, for instance, holding a passport. This element or requirement of allegiance and a duty to the American State is now one of the basic elements of NDAA and a justification for preventive detention, rendition, and military custody and trial of American citizens and non-citizens. Interestingly, on the other hand, we know that the right to claim and enforce allegiance is a key element of totalitarian states.
A couple of other related key elements of the law of high treason, as clearly provided by Article 3 Section 3 of the U.S. constitution, are a) waging war against the United States, b) aiding and abetting the enemy, and c) giving comfort to the enemy. Now these elements also make up part of the NDAA. For instance, John McCain defended the Act, in his Congressional speech, saying: “Those people who seek to wage war against the United States will be stopped and we will use all ethical, moral and legal methods to do so.” Below I give a clipping of his address.
Another key element of the law of high treason is to “compass”—imagine or contrive—the crime of treason. We are reminded of the Philosopher arguing in Hobbe’s famous Dialogue Between a Philosopher and a Student, that the crime of compassing “lyeth hidden in the breast of him that is accused.” Overtime the courts in the UK and the USA preferred to link the cognitive process of compassing treason with the evidence of physical “overt act.” However, the NDAA, with the provision for arrest, detention and incapacitation on the basis of suspicion, has proposed another solution for what remains hidden in the breast of the accused—preventive detention.
The term “enemy” is another key element of the law of high treason as well as that of the state of war. According to well-established public and international law tradition, the term enemy is defined in relation to a declaration of war by a territorial state. Hence, in order to declare a person an enemy, there should be an official declaration of war (for instance, by the Congress as in case of the United States) and the war should be between two territorial states. On the other hand, the anti-terrorism legal regimes in the United State and elsewhere have adapted and frequently used the term enemy without regard for or in order to circumvent the above provisions. The United State pays no regard to or circumvents the traditional legal provisions by inventing new variants of the term enemy, for instance “enemy combatants” and the “associated forces” as declared in the NDAA. Moreover, the NDAA circumvents the key procedural requirement of two witnesses to testify the overt act as prescribed in the law of high treason of the United States.
At the outset I mentioned the West is not a latecomer in introducing the exceptional laws. We can give examples from English legal history, for instance, the Emergency Powers Act 1920, Prevention of Terrorism (Temporary Provisions) Act 1974, and Prevention of Terrorism Act 1989. However, here I want to give a more distant example to demonstrate how English law of high treason not only makes up the substructure of the anti-terrorism regimes in the West but also in Pakistan and South Asia.
The history of the English law of high treason goes back to the statute of 1351. In early 19th century the English law of high treason was adapted for needs of expanding colonial state in India. Thus in 1818 the Regulation III—A Regulation for the Confinement of State Prisoners—was introduced. The Regulation read:
Whereas reasons of state, embracing the due maintenance of the alliances formed by the British Government with foreign powers, the preservation of tranquility in the territories of native princes entitled to its protection, and the security of the British dominions from foreign hostility and from internal commotion, occasionally render it necessary to place under personal restraint individuals against whom there may not be sufficient ground to institute any judicial proceeding, or when such proceeding may not be adapted to the nature of the case, or may for other reasons be unadvisable or improper.
The “reasons of state” or more accurately the colonial state of the 19th century India as provided in the 1818 Regulation and the reasons of state provided by the 21st century states of Pakistan, the UK and the US in their anti-terrorism laws are strikingly similar, for instance, domestic security, tranquility/peace, defense of state interests, maintenance of alliances, etc. However, here I want to specifically point to indefinite preventive detention. The colonial instrument provides for indefinite preventive detention when there is no sufficient ground to institute a judicial proceeding. In other words a person can be detained on the basis of suspicion. In UK the Anti-Terrorism Crime and Security Act 2001 provided for indefinite detention of non-citizens on the basis of “reasonable grounds” for suspecting a person to be a terrorist. Pakistan’s Anti-Terrorism Act 1997 allows arrest, detention, and use of force “against whom a reasonable suspicion exist.” Similarly, the US NDAA authorizes detention based on suspicion. Let me point to Obama’s speech of early 2011, which bears striking textual similarity with the provision regarding preventive detention in the colonial instrument given above: “There may be a number of people who could not be prosecuted for past crimes, in some case because the evidence maybe tainted, but who nonetheless holds a threat to the security of the United State.” (See the video clipping below.) Obama not only defends indefinite detention, but also defends—when he says past crimes—the retroactive nature of that law.
Agamben, Giorgio. 2005. State of Exception. Trans. Kevin Attel. Chicago: University of Chicago Press, January 15.
Fletcher, George P. 2003. “Ambivalence about Treason.” North Carolina Law Review 82: 1611.
Kennedy, Charles H. 2004. The Creation and Development of Pakistan’s Anti-terrorism Regime, 1997-2002. In RELIGIOUS RADICALISM AND SECURITY IN SOUTH ASIA, ed. Satu P. LIMAYE, Mohan Malik, and Robert G. Wirsing. Honolulu: ASIA-PACIFIC CENTER FOR SECURITY STUDIES.