1. ‘Enemy Combatant’ or Enemy of the Government? by Jean-Claude Paye

2. A System of Wholesale Denial of Rights by Michael E. Tigar
From: Monthly Review November 2007 http://www.monthlyreview.org/0807paye-tigar.htm#tigar
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Jean-Claude Paye is a Belgian sociologist and author of Global War on Liberty (TELOS Press Publishing, 2007). This essay was translated from the French by James H. Membrez.

‘Enemy Combatant’ or Enemy of the Government? by Jean-Claude Paye

By introducing the concept of war into national law, the latest U.S. anti-terrorist law, the Military Commissions Act of 2006 (MCA), produces a turning point in the legal and political organization of the Western world. It puts an end to a form of state that succeeded in “establishing peace internally and excluding hostility as a concept of law.”1 It is the constituent act of a new form of state that establishes war as a political relation between constituted authorities and national populations.

By means of the fight against terrorism, the concept of war is introduced into criminal law. The integration of hostility into the legal order is first carried out by administrative acts relative to foreigners and justified in the name of the state of emergency. The MCA incorporates the concept of war into the law permanently. At the same time, it modifies its area of application and its content. It allows the president of the United States to designate citizens and political opponents as enemies.

A State of War

For the executive power of the United States, the fight against terrorism is a war and not an ordinary police operation. Based on this interpretation, it has put in place a group of liberty-destroying measures ostensibly justified by the state of emergency. The suppression of habeas corpus for foreigners suspected of terrorism and the establishment of a continual surveillance of the whole population are thus made possible.

Reference to a state of war has allowed the government to treat foreign “terrorists” as enemies and thereby incarcerate them administratively, without indictment or trial, until the end of the conflict. Since the war is ongoing and indeterminate, the detention of these persons is likewise indeterminate. These “enemy combatants” no longer have the protections accorded to prisoners of war. Since they “violate the laws of war,” they are not regular combatants, but “illegal combatants” who are not protected by international conventions. As a result, the foreigner designated as an “illegal enemy combatant” by the executive power is entirely subject to the arbitrariness of the latter.

The government’s view is that the attacks of September 11 were an act of war and not just a crime. This view is based on a congressional resolution of September 18, 2001, the Authorization for Use of Military Force, which grants special powers to the executive branch. It stipulates “that the President is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001….”2

The interpretation that the executive makes of this resolution is the expression of a state at war, not against other nations, but against organizations or ordinary individuals that are not linked to a foreign government. This interpretation redefines the concept of war. It gives it an asymmetrical character, a “fight to the death” between the world superpower and persons designated as enemies. This new concept of war is freed from positing the existence of any real threat against the United States. It is a pure product of the subjectivity of the ruling power: the state of war exists through its proclamation. In the name of the struggle “of good against evil,” the U.S. state denies the political character of its action and, by blurring the distinction between enemy and criminal, it merges external sovereignty with internal sovereignty.

Exceeding the powers granted by the abstract “authorization” of Congress, the president promulgated an administrative order, the Military Order of November 13, 2001, which authorizes trials of foreigners suspected of terrorism, illegal enemy combatants, by special military tribunals. The terms “enemy combatant” or “illegal combatant” do not appear in the actual text of the executive’s legal order, but result from the interpretation of it made by the administration.

By passing the MCA on September 28 and 29, 2006, the House and Senate introduced the notion of illegal enemy combatant into the law. The possibility of accusing someone of being an illegal enemy combatant has been considerably enhanced since both foreigners residing in the United States and U.S. citizens can now be considered enemies. As a result, by incorporating the concept of illegal enemy combatant into the law, it is no longer just part of a state of emergency, but a permanent presence. The exception becomes the norm; it acquires a constituent character. The two houses of Congress have thus legalized a new legal and political order, one that merges acts of war and police functions by giving the administration the power to turn any U.S. citizen or any member of a foreign nation with which the United States is not at war into an enemy.

In this way, the government changes the relation between inside and outside. U.S. citizens can be enemies and placed outside the United States. By its ability to designate any inhabitant of the planet an “enemy combatant” and then make that person into an “illegal combatant”, i.e., into a criminal, the United States grants itself a police function that it can carry out worldwide. Other states, through various extradition agreements signed with the United States, have not questioned this right that the United States has unilaterally assumed. They have therefore relinquished a part of their sovereignty and given it to the United States. By the willingness to hand over their citizens to U.S. authorities at the latter’s insistence, they have recognized the imperial jurisdictional authority of the United States.

Thus, the idea of illegal enemy combatant occupies a central place in the transformation of the legal and political order. It also concerns the relation between the U.S. state and its residents as well as relations between the United States and other nations. The notion of illegal enemy combatant is situated where military law meets criminal law. It also lies at the intersection of national U.S. law and international law. As a consequence, the elaboration of this idea records the various permutations that have occurred in the exercise of U.S. sovereignty, in its relations with the rest of the world as well as its relation with its residents, be they foreign or citizen. It allows us to define the new form of the American state.

Foreign Enemy Combatant

The first use of the concepts enemy combatant or illegal combatant, within the context of the fight against terrorism, is found in the interpretation made by the administration of the executive order of November 13, 2001. The text authorizes “individuals…to be detained, and when tried, to be tried for violation of the laws of war and other applicable laws by military tribunals.”3

The phrase “individual subject to this order” refers to any person who is not a citizen of the United States and about whom there is reason to believe that he/she “is or was a member of the organization known as al-Qaida” or “has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”4

This first definition creates a crime of “membership,” but limited to al Qaeda. The suspicion that a person may be a member of a criminal organization, without having committed a material crime, authorizes his/her indefinite administrative detention or trial by a military commission. The same thing is true if the attorney general suspects the person of being engaged in acts, having attempted or having had the intention to commit acts, which produced unfavorable effects on the foreign policy or political and economic system of the United States. This indeterminate margin of interpretation makes it possible to justify any arrest.

The government has extensively used the possibility of designating foreigners as illegal enemy combatants. This designation was used not only for members of al Qaeda, such as allowed by the executive order of 2001, but also all the Taliban prisoners captured during the war in Afghanistan. According to the interpretation given by the former White House counsel, Alberto Gonzales, non-respect for the Geneva Convention is justified because Afghanistan is a “failed state.”5

This notion is extended within the framework of the Combatant Status Review Tribunals set up in 2004 in order to try the Guantánamo prisoners.6 In this context, any foreigner captured as part of the anti-terrorist struggle, no matter where in the world, is an enemy combatant.

The Supreme Court decision of June 28, 2004, in Rasul v. Bush actually makes an initial rationalization of a law entirely created by the executive.7 The decision states that foreign illegal combatants have the right to contest their incrimination before a civilian jurisdiction. But, by not calling into question the unconstitutional nature of the crime, it gives recognition to this administrative order and incorporates it into jurisprudence.8

As for the possibility that a foreigner could contest the factual basis of his/her detention before a civilian jurisdiction, it was completely eliminated by the Detainee Treatment Act of 2005.9 This law removes from federal courts all competence to examine the situation of Guantánamo detainees and substitutes for it an exclusive mechanism for revising decisions made by the Combatant Status Review Tribunals.

American Enemy Combatant

The executive power immediately applied the idea of enemy combatant to Americans, in violation of the military order that it itself promulgated. Thus, the detention for three years, without charge, of Hamdi, who was captured in Afghanistan in 2001, was justified by the fact that he was designated by the administration as an illegal enemy combatant. The attorney general specified that Hamdi’s situation did not differ from that of a foreigner since he had been captured on the battlefield. However, in June 2002, the administration also used this term to justify the indefinite administrative detention of another American, Jose Padilla, captured in the United States, and refused him any protection provided by the U.S. Criminal Code or by the Geneva Conventions.

The authority granted to the executive to transform one of its own citizens into an enemy is integrated into the legal order by a Supreme Court opinion of June 28, 2004, Hamdi v. Rumsfeld. Instead of affirming that any citizen must enjoy the guarantees offered by the Constitution, the Court stipulates that there is no obstacle to designating an American citizen as an enemy. The Court refers to an earlier decision: the case Ex Parte Quirin.10 It concerned saboteurs in the service of Germany, captured in the United States during the Second World War. One of the prisoners had U.S. citizenship. The Court stipulated that certain acts, because of their nature-here violations of the laws of war-cannot be submitted to civilian courts and must be brought before military courts.

In so doing, the Court reversed11 an earlier decision, the Ex Parte Milligan case12 from 1866, in which a northern civilian was accused of “conspiracy” and “violation of the laws of war” in aid of the Confederate Army. The Court specified that the use of military jurisdictions was strictly reserved for soldiers of the Confederate Army and military or civilian citizens of an enemy state. It had clearly rejected the argument of the government that an American citizen could be an enemy. The Court added that the accused in such a case should be brought to trial for treason in a civilian court and not in a military court.

In its decision of 2004, the Supreme Court confirms the reversal in jurisprudence made in the Ex Parte Quirin decision and authorizes the government to designate one of its own citizens as an enemy. However, the Hamdi v. Rumsfeld opinion implements a change in the field of application of this crime, from a real war to the permanent and indefinite fight against terrorism. This 2004 decision, hailed by civil liberties organizations as a return of the rule of law is, in fact, a veritable coup d’etat at the judicial level since it offers to the government the possibility of calling on Congress to construct a new legal order to its specifications.

Enemy of the Government

Returning to Congress for such authority is exactly what the executive did. On October 17, 2006, President Bush signed the MCA.13 This law followed a new decision of the Supreme Court dated June 29, 2006, which made the military commissions illegal by stipulating that their structures and procedures violated the rights of the defense as contained in the military code of the United States and the Geneva Convention of 1949.14 However, the Supreme Court did not change the status of the prisoners and allowed the administration to implement other means to try the detainees.

The MCA incorporates, for the first time, the notion of illegal enemy combatant into the law and extends the scope of the crime. While the military order of November 2001, as well as the definition used by the Combatant Status Review Tribunals, only concerned foreigners captured outside the United States, the MCA authorizes naming any American or foreigner living in the United States an illegal enemy combatant. This is not only a matter of extending the geographic nature of the crime, but a qualitative mutation. By designating as enemies persons who have never left American soil and have not been to any battlefield, people who have not been involved in war or police actions, but who oppose the policies of the government from within the national territory, are deemed criminals.

For the MCA, an “illegal enemy combatant” is “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant…or a person who…has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”

Thus a directly political character is given to this crime by designating as an illegal enemy combatant anyone “engaged in or supporting hostilities against the United States.” This definition already existed in the executive order of 2001, but the context was narrowed to include only foreigners captured on the battlefield in Afghanistan. In the MCA, this element is applied anywhere in the world, including the United States, in a context that has nothing to do with a military engagement but instead, free from any territorial determination, as part of the worldwide anti-terrorist struggle. In such an abstract environment, this definition is so broad that it can be applied to social movements or actions of civil disobedience, in fact to any action that challenges the policies of the American government or allied powers. If, in light of the jurisprudence based on the Ex Parte Quirin decision, one can conclude that it is the very nature of the acts that makes the person an enemy combatant, in the context of the MCA, one must conclude that it is their political character that designates the person committing such acts as an enemy combatant.

As for the second part of the definition, it is absolutely arbitrary. One is an enemy combatant, not because one is suspected of having committed an act or of having had the intention of committing one, but only because one is named as such by the executive power. Here, the administration does not even have to justify its decision. It becomes the only possible reality.

A quick reading might lead one to suppose that it is only foreigners who could be affected by this procedure, since the Combatant Status Review Tribunals concern only non-Americans. However, the text anticipates the possibility of including Americans in illegal enemy combatant designations. New administrative tribunals are possible and there is nothing that prevents them from being applied to citizens.

Legalization of the Military Commissions

The MCA legalizes the military commissions, the special military tribunals set up by the executive order of 2001. They were intended to try foreigners captured in Afghanistan, against whom there was not the least bit of proof that would have allowed them to be brought before a civilian court. This law extends the competence of these tribunals to citizens of every country, including foreigners residing in the United States.

The rights of the defense tend to disappear entirely under the military commissions system. The accused does not have the right to choose an attorney. Instead, a military attorney is appointed by the executive power to represent the accused. These tribunals carry out a reversal in the burden of proof. It is up to the accused to prove his/her innocence. The accused can be excluded from certain phases of the trial and does not have access to the entire case file, in particular to the “evidence” presented against him/her if it is classified as a national defense secret.

The law does not grant to detainees the right to a rapid trial, even before a military commission. In this way, it extends the possibility accorded by the Patriot Act of keeping any foreigner suspected of terrorism in indefinite administrative detention. The law provides for a formal system to review decisions before a civilian court. The U.S. Court of Appeals for the District of Columbia Circuit is the only superior jurisdiction with the competence to deal with these cases. But it is only authorized to verify that the procedures followed are in compliance with the law. There is no verification of the veracity of the facts advanced in the indictment. Since this court has, on February 20, 2007, rejected any possibility for the Guantánamo prisoners to contest their detention before a civilian court, this latter formal possibility for judicial monitoring is henceforth closed.15

The military commissions can accept hearsay evidence and confessions extracted by cruel treatment. While torture is formally prohibited, a “certain degree of coercion” is permitted and it is the president who is responsible for setting the level of severity for interrogations. “Evidence” from confessions obtained in countries that practice torture is also admissible.

At the same time, the law prevents any prosecution of American agents for acts of torture or cruel treatment committed before the end of 2005. That allowed President Bush to declare, upon signing the law, that this text authorizes “the CIA to continue its program of detention and interrogation of persons suspected of terrorism in secret prisons outside the United States.”16

A System Planned for Citizens

Only foreign illegal enemy combatants can be brought before military commissions. Americans could have recourse to civilian courts to put forward a habeas corpus request. However, the MCA was designed so that these special tribunals can be applied to the whole population, including citizens. The initial draft of the law is particularly explicit in this regard.17 In view of the rapidity with which the law was passed, it still retains traces of this initial objective. Thus, among the infractions that can be tried by a military commission, there is one that punishes any person who, “in breach of an allegiance or duty to the United States,” intentionally supports actions hostile to the United States or its allies.18 Who, apart from an American citizen, can be in breach of an allegiance or duty to the United States?

The law includes definitions of infractions able to be tried before military commissions that directly target social struggles, such as the idea of an attack on protected property or the idea of pillaging, both of which transform resistance to an illegal occupation into a terrorist action. The directly political character of these crimes is also indicative of the government’s intention to have the ability to bring Americans before these commissions.

A New Imperial Political Order

The MCA throws all foreigners suspected of terrorism into a system of pure violence. However, this does not concern only persons captured outside of American territory by the army or the CIA and foreigners residing in the United States, but also, for example, any inhabitant of the European Union. Within the context of extradition accords signed in June 2003, any resident of a member state of the European Union suspected of terrorism could be handed over to American authorities and subjected to their arbitrary decisions.19 The agreements concluded with the United States result, consequently, in the acceptance of its laws and exceptional measures. The United States has the power to impose its own criteria and its own special jurisdictions for trying foreigners. By relinquishing their own legality, the European countries agree to the subjection of their citizens to these procedures. The latest accords thus insert European citizens into the American system of exceptions to the law. They reveal a true imperial structure in which the U.S. executive has the right to determine the exception and make it the basis of a new legal order.

Whereas international law is no longer respected and war is presented as an ordinary police operation, American criminal law establishes a new definition of hostility that is applied at the world level. The sentencing of David Hicks, the “Australian Taliban,” on March 27, 2007, was the first issued by a military commission. It reveals the ability of the executive of the United States to make other nations legitimize the establishment of a new worldwide legal order that grants it the power to suppress habeas corpus for all non-Americans. By accepting that this Guantánamo prisoner can serve his sentence in Australia, the government of that country provides de facto acknowledgement of these exceptional jurisdictions, which violate international law as much as the U.S. and Australian Constitutions.20

The Australian government is also considering placing David Hicks under administrative control after his release.21 This measure is not provided for in the sentence delivered by the Military Commission. A person sentenced by an American exceptional jurisdiction thus enters into a global system of non-law.

The MCA carries out a transformation in the organization of the state by putting an end to the formal separation of powers. It creates a purely subjective law that it places in the hands of the executive authority. The latter can designate any person as an enemy combatant, make an administrative decision to detain, for life, any foreigner or, if it chooses to go to trial, it can appoint military judges and determine the level of coercion used in interrogations. The text legalizes physical and psychological pressure, which is really a matter of torture. It thus reintegrates pure violence into a legal context that becomes the basis of a new political order that, in turn, permanently grants the president the powers of a judge.

Even though the military commissions have been legalized, they are only formally part of the legal tradition developed in the West, which is, in fact, a double legal system: a restricted rule of law for citizens and pure violence for foreigners.22 The objective of this administration is to apply to the whole population the procedures that allow it to seize foreigners, torture them, and keep them in detention at its sole discretion. The Domestic Security Enhancement Act of 2003, known under the name Patriot II, is the earlier attempt of the government to succeed in this objective.23 Its aim was to remove citizenship from Americans suspected of terrorism and thus treat them as foreigners. As for the Military Commissions Act, the initial objective of the government to have the power to suppress habeas corpus for the whole population has not yet been attained. But having the ability to characterize any inhabitant of the planet as an enemy is a good beginning for the establishment of an imperial state that would no longer distinguish between internal and external. Every population would be entirely at the mercy of the executive power of the United States.

Notes 1.   Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 2007). 2.   U.S. Congress, Joint Resolution of September 18, 2001, Authorization for Use of Military Force, Public Law 107-40, 115 Stat. 224. 3.   President G. W. Bush’s Military Order of November 13, 2001: “Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism,” Section 4, http://www.law.uchicago.edu. 4.   President G. W. Bush’s Military Order of November 13, 2001, section 2. 5.   Terry Gill and Elies Van Sliedregt, “Guantánamo Bay: A Reflection on the Legal Status and Rights of Unlawful Enemy Combatants,” The Utrecht Law Review 1, no. 1 (September 2005), http://www.utrechtlawreview.org. 6.   http://www.defenselink.mil. 7.   U.S. Supreme Court, Rasul v. Bush CA C 321 F. 3d 1134, http://www.supremecourtus.gov. 8.   Jean-Claude Paye, “Guantánamo and the New Legal Order,” Monthly Review 57, no. 1 (May 2005). 9.   Detainee Treatment Act of 2005, December 31, 2005, http://www.justicescholars.org. 10. U.S. Supreme Court, Ex Parte Quirin 317 U.S. (1942), http://www.law.umkc.edu. 11. Dirt Rhodes Scholar, “Understanding Enemy Combatant Status and the Military Commissions Act,” part 1, http://stewart-rodes.blogspot.com. 12. U.S. Supreme Court, Ex Parte Milligan 71 U.S. 2, http://www.law.uchicago.edu. 13. S.390 Military Commissions Act of 2006, http://www.govtrack.us. 14. U.S. Supreme Court, Hamdan v. Rumsfeld (no. 05­184). 15. Josh White, “Guantánamo Detainees Lose Appeal,” Washington Post, February 21, 2007, http://letters.washingtonpost.com. 16. William Branigin, “Bush Signs Bill Authorizing Detainee Interrogations, Military Commissions,” Washington Post, October 17, 2006. 17. “The Enemy Combatant Military Commissions Act of 2006,” http://balkin.blogspot.com. 18. Military Commissions Act of 2006, article 950v (b)26, http://thomas.loc.gov. 19. “Draft Agreement on Extradition between the United States of America and the European Union,” Council of the European Union, 8295/1/03, Rev. 1, June 2, 2003. 20. “Le tribunal militaire de Guantánamo rend sa première condamnation,” Le Monde, March 31, 2007. 21. Caitlin Price, “David Hicks Could Face Australian Control Order after Guantánamo Release,” Jurist, April 1, 2007, http://jurist.law.pitt.edu. 22. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998). 23. Domestic Security Enhancement Act of 2003, http://www.eff.org.

2. A System of Wholesale Denial of Rights by Michael E. Tigar

Michael E. Tigar is a lawyer and law professor. He teaches at American University, Duke, and the Faculté de droit et de science politique in Aix-en-Provence. He is the author of Law and the Rise of Capitalism (Monthly Review Press, second edition, 2000).

As in the past, Americans owe Jean-Claude Paye a debt of gratitude. From his position, as a sociologist in Brussels, he has proven that he can see what is happening in George Bush’s and Dick Cheney’s America, more clearly perhaps than many who live in the United States.

As Paye notes, there are two important aspects to the regime created by the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA). The MCA recognizes a distinction between “enemy combatants” who are citizens of the United States and those who are aliens. Alien enemy combatants are, as Paye notes, subjected entirely to the regime of military commissions and denied access to civil courts except under limited circumstances. Citizen enemy combatants have access to civil courts, but find their rights constricted in other ways. The alien-citizen distinction in the MCA is a congressional response to the Supreme Court’s decision in Hamdan v. Rumsfeld, in which a five-justice majority held that the president did not have the power to strip citizens and aliens alike of their right of access to civil courts and to the writ of habeas corpus. The Court invited the president to return to Congress to validate his claims of power, and Congress obligingly did so, thus proving that there are few persons in the elected leadership willing to raise a voice against the imperial powers of which Paye writes.

For Americans having some direct or vicarious experience in the political struggles of the past six decades-that is to say since the 1940s-the definition of enemy combatant is chillingly familiar. The initial determination of culpability is made based on either (1) membership in or affiliation with al Qaeda, which is hardly an organization in the sense of having a defined structure, or (2) conduct that amounts-with some exceptions that I note below-to material support of hostilities against the United States. The definition of enemy combatant may also attach even to those who engage only in acts that are merely preparatory, or done with a forbidden intention without provable present danger or effect. The elastic and elusive meaning of “al Qaeda,” coupled with the vagueness and overbreadth of prohibited association, vests unfettered discretion in executive officers who are in charge of rounding up and detaining suspects.

This broad-gauge approach is not new, but rather an extension into new territory of a definitional structure adopted by the Clinton administration in 1994, and based upon ideas that have been central to repressive legislation for decades past. To evaluate this assertion, let us consider some basic principles of constitutional law.

The First Amendment protects freedom of speech and association. Under the Supreme Court’s decision in Brandenburg v. Ohio, speech that advocates unlawful violence is constitutionally protected unless uttered with the intent to cause such violence imminently and under circumstances showing a clear and present danger that this is what is about to happen. That is, one can believe, teach, and advocate that U.S. policy is wrong, that the alleged enemies of the United States should prevail, that socialism should replace capitalism, and-as  Brandenburg was himself advocating-that people wreak vengeance on public officials.

A second and related idea is that one is free to associate with a group that has demonstrably unlawful objectives, absent proof that one intends by one’s actions to further those objectives. After all, many political associations engage in both lawful and unlawful activity. In the 1961 case of Noto v. United States, the Supreme Court reversed a conviction for membership in an organization devoted to overthrowing the government; the prosecution had not proved that Noto’s membership went beyond supporting the constitutionally protected activities of the organization. And note that those latter activities might well include advocacy of violence.

The most sweeping repudiation of the constitutionally based limiting principles introduced by the Clinton administration’s 1994 definitional structure is in connection with the term “material support.” If someone in the United States sent munitions to a group that was engaged in armed conflict with U.S. forces, that would be the sort of “material support” that one could understand and that would form the basis for valid and limited criminal laws. However, that term has been part of several laws prohibiting actions that allegedly support terrorism since at least 1994. In the Patriot Act and related legislation, the term has acquired an enormously expanded meaning.

If an alien-someone not a citizen-is compelled to serve as a cook or nurse for Taliban forces or some group allegedly tied to al Qaeda, that person has provided material support and is subject to exclusion from asylum in the United States and possible designation as an enemy combatant. If a group of people in the United States contribute to a Muslim charity based in a foreign country, some of whose activities are alleged to support actions contrary to U.S. interests, they become targets of prosecution for material support and for designation as enemy combatants.

The definition of material support has thus gone beyond limits dictated by the nature of the support provided, or indeed to a large extent the intention with which it was given. This stretching of the ordinary meaning of words has occurred in circumstances even more dangerous to the right of political speech. Consider the case of Lynne Stewart, a courageous lawyer in New York, who now stands convicted of, among other things, agreeing to provide material support to an organization devoted to violence.

The organization in question is the Egyptian Islamic Group, long an opponent of the repressive Egyptian government. That government has, even according to the annual country reports by the U.S. Department of State, an abysmal human rights record. Lynne Stewart was trial counsel for Sheikh Abdel Rahman in New York in 1995­96. Sheikh Abdel was charged with complicity in the 1993 World Trade Center bombing and convicted on doubtful evidence.

After his conviction, he was put into solitary confinement in a prison hospital. He is blind, aged, and a diabetic. He does not speak English. His sole contact with the world outside prison was by means of visits from his legal team and occasional telephone conversations with his wife and other close family members. These latter conversations were monitored overtly, and many of his lawyer visits recorded covertly.

Lynne Stewart gave two interviews to the Egyptian press, reporting Sheikh Abdel Rahman’s views on whether the Islamic Group should continue its policy of not engaging in armed struggle against the Egyptian regime. These statements did not advocate violence. They simply raised the issue of whether nonviolence was a preferable path, and left the issue to those in Egypt; those in Egypt decided to maintain the policy of nonviolence. No person was killed or even harmed as a result of these statements.

The government claimed, and the trial court agreed, that Stewart provided “material support” in the form of “personnel,” by repeating her client’s statements. That is, the Bush administration successfully argued that political speech on a matter of public interest, without proof of clear and present danger, was classifiable as unlawful.

These observations suggest the danger that lurks in the expanding definitions of criminal support for alleged terrorism. However, in most of the cases, including Lynne Stewart’s, the regular courts are open and available to make arguments about constitutional protection. Asylum-seekers, however, do not have such rights; there are avenues of judicial review available to them, but these are provably inadequate. The expanding criminalization of speech and association traces paths familiar to those involved in the political struggles of past decades.

Citizens classified as enemy combatants under these expansive definitions will at least have access to civil courts. We shall see whether those courts will exercise judgment independent of presidential proclamation. The legislative branch has not set a good example of independence. Recent decisions by federal courts in cases related to the “war on terrorism” have contained some courageous statements on governmental overreaching as well as some distinctly supine acceptance of executive power.

The Radical Departure

But as Paye notes, the most radical departure of the proclamations, the DTA and the MCA, is with respect to aliens who are deemed “enemy combatants.” As Paye notes, the administration’s evident intention is to deny any such person the right of habeas corpus, that is access to a civilian court where the government must prove by lawful and reliable evidence that it has the right to hold the detainee. Moreover, this unreviewable detention is claimed to be of indefinite duration, and under conditions of solitary confinement, with interrogation practices that in the view of many amount to torture, without access to independent counsel, and with no right in any forum to make a meaningful challenge or denial.

One needs to be clear about this. Those of us engaged in representing detainees do not concede that the civil courts have no power, and that the Bush administration’s objective can go unchallenged. We shall see. But one must examine the administration’s claim to see that it in fact represents a qualitative rupture with the claimed system of constitutional governance. Abandoning the pretense of the state as neutral arbiter, the administration has unilaterally abrogated the social contract of which constitutional jurists have often spoken.

To be sure, the contract reference is somewhat figurative, but no less powerful for all that. The most celebrated example is the case of Judith Coplon, an American lawyer accused in 1949 of attempting to commit espionage on behalf of the Soviet Union. The FBI had conducted illegal wiretaps to collect evidence against her, and resisted disclosing them to the court. Learned Hand, writing for the court of appeals, held that the wiretaps must be disclosed, so that the court could determine whether the prosecutors had used unlawfully obtained evidence in Coplon’s prosecution. Judge Hand expressed the idea that the government cannot have it both ways. Once it decides that someone should be punished, it cannot retreat behind a curtain of “state secrecy” and deny the defense access to information that may lead a jury to acquit, even if that information is the most sensitive “national security” material that can be imagined.

To take an even broader perspective, the Constitution contains a number of specific provisions that govern the ways in which the state can inflict punishment on people. The Sixth Amendment says that “in all criminal prosecutions,” the accused shall have the right to counsel, to jury trial, to confront the evidence against him or her, and so on. The Fifth Amendment says that no person shall be deprived of life, liberty, or property without due process, which means at least an impartial tribunal that hears reliable, lawful evidence. That amendment also says that “no person” shall be tried for a serious crime except after indictment by a grand jury. Criminal trials are to be presided over by a judge appointed for life and nominally independent of the executive branch, and this is not only by Article III of the Constitution but the long tradition that it embodies. Under the Fourth Amendment, a judicial warrant is necessary to authorize searches; the amendment was written by people familiar with the concept of treason and revolution, but grants the executive branch no exceptions for such cases.

There are exceptions to these principles, but the only one that is possibly relevant is the provision that Congress can “make rules for the government and regulation of the land and naval forces,” which includes the power to establish courts martial for offenses within military jurisdiction. The MCA system for trying alien enemy combatants does not provide even the protections given a defendant in a general court martial; more on this issue later.

The Constitution also confers upon Congress the power to define and punish piracy and other offenses against the law of nations. At the time the Constitution was adopted, there were plenty of aliens shooting at Americans and taking their property and otherwise endangering international peace. These people were called “pirates.” Congress possesses carefully defined constitutional powers with respect to piracy. The practice in 1787 was to capture pirates and bring them into port for trial.1

Thus, the system of federal criminal law and procedure established by the Constitution is, on a careful reading, all-inclusive and not admitting of exceptions. We must, however, acknowledge that the history of armed conflict has revealed instances where civilians and soldiers were treated in ways that do not meet the standards the Constitution established. The international community has addressed this issue directly, and the United States is party to a series of treaties that protect combatants and civilians when there is armed conflict. Most of these protective principles are codified in the Geneva Conventions, which protect prisoners of war and noncombatants, and the Hague Conventions, which regulate the conduct of warfare. Rules of customary international law supplement and extend these protections.

It was generally understood until the Bush administration’s proclamations and the ensuing legislation that this Constitution and treaty-based system did indeed cover all the possibilities for the United States detaining, trying, and punishing people who were engaged in or affected by armed conflict. There is, in these concepts of “enemy combatant,” and particularly “alien enemy combatant,” as people without rights and without the means to enforce rights, a chilling reminder of an earlier dark chapter in American history. I refer to chattel slavery. The Bush administration has reverted to a juridical technique of finding a hole in the constitutional fabric, through which will fall all members of this denominated class of persons-alien enemy combatants.

Almost everyone recognizes the name Dred Scott, and has heard of the Dred Scott case. Dred Scott was born into slavery, in about 1795. In the 1830s, his owner lived and worked in Illinois and in the Wisconsin Territory. Under Illinois law at that time, a slave brought into the state was regarded as free, and would not regain slave status upon return to a state in which slavery was legal. During this period, there were fierce political battles, and even armed conflict, over the issue of extending slavery as new territory was incorporated into the United States and new states were created.

When Scott’s master returned to Missouri, a slave state, he hired Scott out as a slave, which was unlawful under Illinois law but apparently permitted under the law of Missouri. Scott sued, first in state court and then in federal court, to have his freedom recognized. His litigation was supported by abolitionist lawyers and their supporters.

Scott claimed that the federal court had jurisdiction over his case because he was a citizen of Missouri and his “owner,” Sanford, was a citizen of New York. This was a claim of diversity of citizenship, a category recognized explicitly in the federal Constitution and in the first Judiciary Act. Scott claimed that Sanford had assaulted him, but the heart of the case was the claim-necessarily involved in the claim of assault, that Scott was a free person entitled to have his rights respected.

The case finally arrived in the Supreme Court in 1854, and the Court heard days of argument in February and again in December 1856. By that time, the slavery controversy was at the center of political attention. James Buchanan was elected president in 1856, to be inaugurated on March 4, 1857. Buchanan attempted to influence the Court’s members to decide the case against Scott, hoping that such a decision would establish the constitutional position of slavery and end the national debate on the subject.

The Court issued its judgment by a vote of six to three, on March 6, 1857, two days after Buchanan’s inauguration. The lead opinion was by Chief Justice Roger Taney of Maryland. The Court held that Scott was not a citizen of Missouri and indeed lacked the capacity to be a citizen of any state. It then went on to hold that territorial legislatures-and by necessary inference state legislatures-lacked the power to enact legislation that gave slaves their freedom upon entering the territory. Such statutes, Taney said, would deprive slave owners of their property.

A few celebrated quotations from Taney’s opinion will remind readers of how telling is the analogy to what the Bush administration is now trying to do:

 [N]o State, since the adoption of the Constitution, can by naturalizing an alien invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character.  ****  [N]o State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States.

Those who wrote the Constitution, Taney said, thought that Africans, slave or free, were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Indeed, said Taney, accepting Scott’s position “would give to persons of the negro race…the right to enter every other State whenever they pleased…the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

The decision in Dred Scott made the Civil War inevitable. Abolitionists, such as Frederick Douglass, had held hope that slavery might be abolished by constitutional interpretation. He read the Constitution differently than did Taney, as recognizing slavery in two important respects: first, by providing that a slave would be counted only as three-fifths of a person for purposes of taxation and allocation of legislative seats, and as barring Congress from prohibiting the slave trade until 1808. Second, it was clear from article 1, section 2 of the Constitution that slaves were “persons” within the meaning of the Constitution and that they counted for at least something in giving congressional seats to slave states.

Taney and the Court majority-mostly Southerners-could have decided the other way by relying on the “persons” language of the Constitution, and by careful study of the Court’s earlier decisions involving slavery. In 1825, Chief Justice John Marshall, in a case entitled the Antelope, had written for the Court that slavery and the slave trade as then practiced did not violate international law, and by extension the Constitution. However, in 1841, the famous slavery case-the Amistad-came to the Supreme Court, and was widely supported by abolitionist forces. The Court’s decision, written by Justice Joseph Story, did not say that slavery was unconstitutional. However, it upheld the rights of Africans on board a slave ship to rise up and mutiny in order to defend their claim to freedom. Justice Story referred to “eternal principles of justice and international law.”

Implicit even in the Antelope, and expressly in the Amistad, is the idea that Africans who claim freedom are persons entitled to the law’s respect. “Respect” means nothing unless there is a mechanism to have it enforced by state power. The Dred Scott decision simply held that there was a category of human beings utterly excluded, by definition, from the constitutional compact-except to the limited extent that some states might allow Africans to be free-and provided that if they had been slaves their owners were compensated.

Dred Scott, in the telling phrase used by my colleague Muneer Ahmad, had “no right to have rights,” according to the Court’s majority. As a direct consequence of the Civil War that the Dred Scott decision made inevitable, the Thirteenth Amendment to the Constitution abolished slavery. The Fourteenth Amendment made express what one had thought should be implicit in the Constitution:

 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of course, after 1872, the Southern states made a virtual dead letter of these Fourteenth Amendment commands by enacting “Black Codes” that excluded the former slaves from all the rights of persons and citizens, and these legal barriers were not struck down until the mid-twentieth century. Their effects persist today.

This idea that the state can exclude a class of persons from all means to enforce claims for justice did not originate in the Dred Scott decision itself, nor necessarily in the legal ideology of slavery. Earlier in the nineteenth century, the Cherokee Nation of Native Americans had organized in order to resist white settlers taking its historically occupied lands. It went into federal court to vindicate its claims against the state of Georgia. As I wrote in the second edition of Law and the Rise of Capitalism:

 The Cherokee Nation of Georgia adopted a written constitution and asserted sovereignty over its land. The Georgia legislature responded by declaring Cherokee laws and customs void and opening Cherokee land to settlement. The federal Congress, at the urging of President Andrew Jackson, passed legislation seeking to compel Native Americans to give up and move Westward. Georgia authorities arrested, tried and hanged a Cherokee for an offense allegedly committed on Cherokee territory.

The Cherokee Nation sought relief in the Courts.2 They were, after all, a nation. They sought to restrain the enforcement of Georgia laws which “go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties reportedly made and still in force.” The Cherokee’s lawyer invoked the Supreme Court’s power, saying that the lawsuit was between a foreign nation-the Cherokee-and the State of Georgia. Under the United States Constitution, the Supreme Court could exercise its original jurisdiction over such a lawsuit-without waiting for lower courts to decide it and then hearing the case on appeal.

Chief Justice Marshall looked to the constitutional grant to Congress of the power to regulate commerce with “foreign nations, and among the several states, and with the Indian tribes.” He found the Cherokee to be “a domestic, dependent nation” that was “in a state of pupilage,” like “that of a ward to his guardian.” It was not, he said for the Court a true “foreign nation.” Thus, the Cherokee Nation had no legal existence. It could not even come to a federal court to vindicate its treaty rights.

The Court decided Cherokee Nation v. Georgia in 1830, over the dissents of Justices Story and Thompson. Two years later, in Worcester v. Georgia,3 Chief Justice Marshall retreated a bit, and held that Georgia did not have the right to regulate activities on the Cherokee lands. He did not reach this result by recognizing the position of the Cherokee nation, but by denigrating the right of a state such as Georgia to interfere in matters that are essentially federal. That is, the national government had the constitutional power to deal with Native Americans and the states had only a limited role to play.

Cherokee Nation is an early formulation of imperialist ideology, justifying the exclusion of “subject peoples” from any access to forums in which they might assert their rights by invoking a plenary and unreviewable power in the hands of executive power. The common thread that runs through Cherokee Nation, Dred Scott, and the enemy combatant characterization of which Paye writes is this complete exclusion of claims for justice from any possibility of discussion.

By contrast, a political group or an individual may invoke rights to freedom of expression and association. Having gained access to a constitutionally created tribunal, the court will engage in a debate about how those ideas should be expressed in rules of conduct. The court will then evaluate the facts and apply those rules.

The experience of decades teaches us that these constitutionally created courts often defer unreasonably to the executive branch, as to how rules should be formulated and facts determined. The constitutional promise of impartiality is another lie the regime tells the people. Even when the process can be seen as fair, there is no guarantee against unjust results. The point, however, is that the regime is the general run of cases telling the people that there is access to something that calls itself justice, and that the tribunals established under that promise engage in certain defined procedures that contribute to a sense that the results are fairly arrived at.

The newly invented enemy combatant category, particularly when applied to non-citizens, short-circuits the connection between state power and the person against whom that power is to be exercised. The Bush administration invokes characterization-a label-to take any question of rights out of the debate. This is a familiar technique to students of bourgeois legal history. In 1842, Marx wrote an essay on “the law relating to thefts of wood,” and described how the Prussian state had made a peasant mode of living illegal by the simple device of declaring fallen branches to be the property of the person who owned the tree. Peasants who had historically gathered the fallen branches to build cooking and heating fires were thus further marginalized and forced into the ranks of wage laborers. The English Black Acts of 1721 and after, so brilliantly chronicled by E. P. Thompson, worked the same kind of harm on the English peasantry, and with the same objective.

One should also call to mind the Supreme Court’s decision in Romer v. Evans. Many Colorado cities had adopted legislation protecting gay rights in various ways. In a statewide referendum in 1992, Colorado voters approved a state constitutional amendment that prohibited all legislative, judicial, or executive action at any level of state government that would recognize the rights of gay people to be free from discrimination. The U.S. Supreme Court held that this state constitutional amendment violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. Justice Kennedy, speaking for the majority of six justices, said that the law singled out gay people as having no right whatsoever to seek redress against discrimination. In private conversation, Justice Kennedy has said that to him the Colorado provision seemed like the Dred Scott decision in its intent and effect.

The Court’s decision in Romer, and Justice Kennedy’s comment, calls to mind another idea about the enemy combatant classification. The proclamations and statutes create a class of persons who are asserted to possess certain dangerous characteristics. These persons are to be hauled before commissions to determine which specific characteristics they have allegedly exhibited by their conduct. This is a classic bill of attainder, forbidden by the Constitution. For example, in United States v. Brown, the Supreme Court struck down a statute that made it a crime for a member of the Communist Party to hold a labor union office, because the statute created a class of suspect persons and singled them out for punishment without requiring a judicial trial to decide if they had done any particular wrongful acts.

It remains to examine the ostensible justification for creating a system that permits wholesale denial of rights. Already, the newspapers are carrying reports that this or that detainee has confessed to participating in armed action against American targets, and military officers are being quoted in the press as promising more such revelations. A quick response to these reports is a rhetorical “does anyone believe anything this administration says?,” coupled with another shake of the head at how credulous most of the media have become.

A more serious answer lies in the texts of the presidential proclamations and congressional enactments themselves. While the MCA expressly disavows torture, it insulates Americans who practice it from liability. The government argues that it permits use in evidence of statements obtained in violation of this limited prohibition, prior to the statute’s enactment. Moreover, President Bush has accompanied his signature on the legislation with a signing statement that casts doubt on whether the statute’s command will be obeyed. In any event, the administration has taken so limited a view of what torture entails as to encourage forms of interrogation long condemned by the international community. In short, these alleged “confessions” are the product of long, solitary, and inhuman detention accompanied by interrogations that have historically been denounced as leading to untrue acceptance of liability. As I write these words, eighteen British sailors are in Iranian custody for violating Iran’s territorial waters. At least one of the sailors has appeared on television apologizing for the intrusion. Much of the press carries this statement as a “confession,” with the word in quotation marks signifying distrust of Iran’s interrogation methods, while the same publications omit the quotation marks when discussing Guantánamo.

When there is any inquiry, from citizens, media representatives, or even the legislative branch about exactly what methods of interrogation are being used at Guantánamo and other, even more isolated, prisons, the administration is quick to claim that this is a state secret. Indeed, in the Guantánamo proceedings, the government has sought to prevent lawyers from knowing the interrogation techniques, assertedly because if terrorists knew how they would be interrogated, they could prepare themselves to withstand the methods to be used.

One recent disclosure from Guantánamo is that a Tanzanian, Ahmed Ghailani, and a Pakistani, Walid abin Attash, confessed to helping plan the 1998 bombing of the U.S. embassies in Tanzania and Kenya. They are among detainees recently transferred to Guantánamo from secret CIA prisons. In those prisons, they were without doubt subjected to torture. What will happen to these two men? They are subject to a death penalty at the hands of a military commission, and have already been punished by their confinement and treatment, without any judicial trial or opportunity to obtain review of their detention or conditions. Readers may recall that in 2001, four men were tried in New York federal court for participating in the embassy bombings. The government sought the death penalty. One defendant, Khalfan Khamis Mohamed, was arrested in South Africa, having gone there from Tanzania. The FBI and some lower-level South African officials fabricated a story that he had consented to be sent to the United States to face a capital trial, and on this basis he was flown to New York.

The South African Constitutional Court took the case and held that the rendition was unlawful under South African and international law. The court’s judgment exposed the fraudulent means used to bring Mohamed to the United States. Under American law, however, the illegal rendition did not prevent him from being tried. At his trial, Mohamed was convicted, but Judge Sand instructed the jury that it could consider in mitigation of a potential death sentence that if the United States had obeyed the law, Mohamed would not have faced the prospect of a death sentence. This was an accurate statement because, among other reasons, South Africa would never permit a lawful extradition without attaching a condition that the defendant could not face capital punishment.

At the federal trial defendants had the right to confront and cross-examine witnesses, and were guaranteed that the judge would consider whether evidence was lawfully obtained. In that trial, the jury refused to approve a death sentence for any defendant.

In the cases of Ghailani and Attash, the United States has found a way to avoid all the inconveniences of due process, because now they are no longer “persons” entitled to such a thing. The “alien enemy combatant” characterization has short-circuited all entitlement to a judicial trial for a crime clearly defined and clearly within the congressionally defined jurisdiction of U.S. courts and juries. One should recall that in the CIA prisons, such as the one where Ghailani was held, the Bush administration claims that no treaty limits the interrogation techniques that may be used; the Bush administration and the CIA take the position that congressional restrictions on interrogation in the MCA do not apply to CIA interrogators. In fact, Ghailani is named in the indictment under which the four defendants tried in 2001 were charged. The Bush administration’s proclamation took a criminal defendant out of the process in order to deprive him of rights.

I do not, of course, harbor the illusion that people of color, or those of any color accused of complicity with terrorists, in “ordinary” criminal cases are routinely treated in a constitutionally respectful way. I have written on that subject in Monthly Review.4 As Roland Barthes has written, the system that calls itself “justice” is always ready to judge you as you must be, and not as you are-as a social construct and not as a human being. But when the system behaves in these ways, one has at least the opportunity to compare its performance with the state’s own proclaimed standards, and to have the benefits of publicity and courtroom confrontation.

We, the lawyers, will continue our work, seeking to bring these issues into the open in the forums that remain available to us, and advancing all the arguments and interpretations that we can think of. Our commitment to this important work should not lead anyone, and perhaps especially us, to ignore what is happening as the state unilaterally casts aside any pretense of impartiality or of an obligation to act in fair and accountable ways.

Notes
1. Indeed, if the pirate was an alien, he would get the additional protection of a jury, half of whose members were aliens-the jury “de mediatate linguae.” See Respublica v. Mesca, 1 Dall. 73, 1 L.Ed. 42; People v. McLean, 2 Johns.(N.Y.) 381. This practice has been abrogated. See United States v. Wood, 299 U.S. 123, 145 (1936).
2. Cherokee Nation v. Georgia, 30 U.S. 1 (1830).
3. 31 U.S. 515 (1832).
4. Michael E. Tigar, “Lawyers, Jails, and the Laws Fake Bargains,” Monthly Review 53, no. 3 (July­August, 2001), 29­41, http://www.monthlyreview.org/0701tigar.htm.