he emergency measures passed by the American government on October 25, 2001, after the terrorist attacks that razed the Twin Towers and a wing of the Pentagon to the ground, known as the United States Patriot Act, give the executive branch enormous discretionary power to enforce all measures of security that the President deems necessary to protect the salus rei pubicae in this time of emergency (a time that, due to the peculiar character of the “enemy,” could extend itself into a future of imprecise duration). These measures thoroughly violate the Bill of Rights on “due process” and the rights of individuals as much as they do the Constitution, which does not give any organ of the state the power to declare a state of emergency or enforced exceptional laws. Article II, Sect. 3 states that the President shall “recommend to their [the two Houses] to their consideration such measure as he shall judge necessary and expedient.” The limits of ‘necessity and expedience’ are carefully defined in Article First of the Bill of Rights. That notwithstanding, for several months after its endorsement, the Patriot Act has not provoked substantial criticism neither from Congress (where it received only one dissenting vote in the Senate and seventy six votes against in the House) nor in public opinion. Like Italy in the 1970s when Parliament approved the “special emergency legislation” against terrorism, after September 11, the politics of national solidarity in the United States were endorsed and pursued with conviction by everyone: citizens, the opposition party, the media, and the intellectuals.          

This unilateral conviction should come as no surprise. Although contemporary democratic constitutions do not have provisions for a state of emergency, and do not confer the power to violate the fundamental rights of citizens for reasons of necessity to any constituted power, democratic states are not negligent in the defense of the life and security of their citizens. Though the liberal democratic form of government does not condition the respect of its principles on reasons of prudence, democratic politics are not indifferent to evaluations of a pragmatic nature and, in any case, the dualism between normativism and consequentialism is poorly placed because, as Jürgen Habermas explains, democratic deliberation consists precisely in a fair marriage of these two perspectives.         

What democracy absolutely does not tolerate is the suspension of dissent and the politics of secrecy in public issues. For this reason, the special measures adopted by the American government have been judged, for the time being, as necessary, but have not delayed rousing criticisms from the part of informal “keepers” of democratic freedom, or rather the newspapers and various forms of expression of ideas that grow in civil society. It is correct, therefore, to say that the existence of public debate and criticism of the government is the measure of democracy. Even in democratic regimes the executive branch can indulge in autocratic temptations; the century-old idea that threats to freedom come mainly from the majority is a sketchy one at best. This idea derives from the fact that the elected majority has the power not only to make laws but to enforce them as well. The origins of the degeneration of free government lie in executive power, as we are told by liberal democrats like John Locke or non-liberal democrats like Rousseau. It is the sure and free presence of the other powers (that of the legislative,  public opinion and political movements) that denotes democracy in its fullness. In the United States after the early months of support for the Bush administration (until the end of the bombardments in Afghanistan), unanimity was shattered from the inside of these powers.         

There are two issues that define the criticism from the beginning of 2002. The first concerns the powers of the president; the second, the violation of rights. Before examining these two topics, it is appropriate to briefly summarize the contents of the Patriot Act.        

As it exists, the Patriot Act contains measures that restrict the civil liberties sanctioned by the Bill of Rights on the basis of a vague and broad definition of terrorism and of those who help terrorists—either directly or indirectly—with words or financial and logistical support. The definition is not all that different from the one adopted in the 1970s in Italy, but unlike that definition, this one has a range of applications that is global and that reflects, predictably, the imperial role of the United States, a role which American intellectuals are aware of.1         

The power to decide if an individual is suspected of terrorism or supporting terrorism in some form, direct or indirect, rests with the executive branch, that is with the President or the people in power in the Department of Justice and the public officials under their jurisdiction. If the executive power decides that there is a “reasonable basis” for suspecting someone of terrorism, the suspects can be detained without disclosing to them the reasons for their detention; without permitting publicity of the process; and, ultimately, without allowing the accused to freely choose a defense lawyer or to confer freely with an appointed lawyer. Furthermore, mere suspicion is sufficient to justify detention, proof is not necessary, and the duration of the preventive detention can vary from six months to a year or as long as the government deems it necessary for reasons of national security. Also, the procedural hearing is military, not civil, which means that the President can intervene directly and at his discretion in the outcomes of the trial (the military sphere being directly under his command) and he can contest, annul, or change the verdict of a jury. Ultimately, the detainee could in theory remain incarcerated for an indefinite period of time since the verdict is in every case subject to concerns of public security and the end of a kind of war—the “war on terrorism”—that does not have, in and of itself, a clearly defined end. In addition, the forces of law and order and secret services are given a vast power of legal search, of monitoring correspondence, travel, telephone and electronic communication of all those who live and travel on American soil. Finally, the fact that there are military tribunals to judge the terrorists entails two things: first, that it is vital for these processes to be conducted behind closed doors; and, second, that the judgment of juries, when it concerns capital punishment, can be handed down with a majority of two thirds of the votes of the jury (the American penal code calls for unanimity in the case of imposing the death penalty). As Ronald Dworkin has written, “this is the kind of ‘trial’ we associate with the most lawless of totalitarian dictatorships.”2          

Ultimately, it is American citizens of Arab origin and Muslim religion as well as foreigners who are the targets of this vast discretionary power. The politics of “profiling” (widely adopted towards African Americans and beforehand with “communists” and those suspected of anti-American activities) have been widened to include those who are in some manner close to countries, cultures and religious traditions associated with the perpetrators of the terrorist acts in September. In essence, as political theorists know, the individual right to privacy diminishes in proportion as the government privilege of privacy increases.            

We now turn to examine the first kind of critical argument, that relative to the power of the President. How can we define the prerogatives that President Bush has claimed? Is it correct to speak of a “dictatorial power,” as was done in The New York Times?3  If by dictatorial power one means the power (conferred by the Constitution) to decide on exceptional measures in order to meet exceptional circumstances, then, as Andrew Arato has reminded us, it is very questionable to define the powers of the Bush administration as a case of dictatorship, if for no other reason than because in the Western political and judicial tradition, dictatorships have a very specific meaning and entails a specific set of rules.            

In the constitutional tradition of the Roman republic that codified it, dictatorship was defined as much by the criteria that were necessary to institute it as in the form of implementation and ultimately its duration which was carefully specified and limited. This is not actually the case in America today, which should instead be defined as a true and actual case of the President’s arbitrary power. Since the Constitution of the United States does not have provisions that establish and regulate the suspension or violation of regular procedures and the law by the President (the very power to declare a war is the prerogative of Congress, not the President), the measures adopted by Mr. Bush are clearly the fruits of an arbitrary decision.4          

It is true that there are precedents in American history that can be used (and have been used) to justify the Patriot Act. President Lincoln suspended habeas corpus during the Civil War; President Franklin Roosevelt interned Japanese Americans in concentration camps after the attack on Pearl Harbor and, during the Second World War, he eventually tried German spies captured on the U.S. coastlines (who were orchestrating a submarine attack) by a military tribunal that condemned them to death. Indubitably, the decisions of President Bush reintroduce similar measures, and yet they cannot be justified in the same way those of Lincoln and Roosevelt can because those were taken in a state of actual civil war or a declared war. To be sure, President Bush justified his exceptional measures by appealing to a state of war (the “war on terrorism”). However, this war represents an evident breach of the international conventional definition of a war, even if this does not entail the rhetoric of war is powerless. The “war on terrorism”  is a normative phantom endowed with the power of creating a normative reality of its own. One might say that the Patriot Act’s decrees have given an actual reality to the symbolic reality (the war on terrorism) that was used to justify them. In a circular movement that mimics Hegel’s phenomenology, the virtual and the symbolic are made real by reflection, and receive concrete life from their own real outcomes. 

Not only does the “war on terrorism” not have a declared and recognizable beginning, it doesn’t have a foreseeable end. It is a war fought against an enemy that is unknown by recognizable international conventions. Not identifiable with a collective moral person (the state) inhabiting a specific and internationally acknowledged territory, this new enemy is ubiquitous and the war against it must also be ubiquitous. The impossibility of delimiting the space and location of the enemy entails the impossibility of circumscribing the war against it in time, manners and duration. For all these reasons, the present case is neither comparable nor justifiable with past cases. The exceptional measures of the Bush administration are arbitrary as much as the normative entities they entail. Arbitrary is the suspension of habeas corpus, the interment of “enemy combatants” in the concentration camps in Guantanamo Bay, and, ultimately, the decision to subject them to military proceedings. And this arbitrariness is manifest precisely in the form with which President Bush announced these measures:  “I have determined that a national emergency exists for national defense purposes” (my italics).         

The second kind of question pertains to the purposes of the Patriot Act. As I mentioned above, these measures were not subject to immediate criticism. For several months the politics of emergency have suspended and obscured political dissent, and at the same time the pettiness of the Bush administration, a pettiness that Islamic terrorism has contributed to obscuring. Only in the early months of 2002 has the criticism of these liberticidal and anti-constitutional measures has become more current and open. Dissent has grown proportionate to the knowledge of the inefficiency of government agencies and the organs of security, of their responsibility for not having prevented, when they could have, the terrorist attacks. Above all, it has grown and continues to grow proportionate to the number of American citizens implicated at various levels in the terrorist organization of Al Qaeda, which then leads to general criticism of the purposes of the arbitrary measures of the Patriot Act. The crisis of confidence in the honesty of the President and the Vice President, concurrent with the bankruptcy of Enron and the financial scandals, adds more fodder to the loss of credibility of the Republican government notwithstanding the care that critics use to keep issues of security separate from domestic politics, and use the former to conceal the latter. The elections that will be held in November are becoming a catalyst for dissent, even if the hope that this will finally put the Democratic party (practically mute and absent after September 11) back into the mix and able to devise its own distinctive political agenda is meager.           

What interests me here, however, is the dissent of intellectuals. This was given an important mark by Ronald Dworkin, a scholar traditionally active in denouncing the abuse of rights and the poor decisions of the Supreme Court. On this occasion, he has been the most outspoken authoritative liberal intellectual in the entire American academic panorama, an area singularly passive and silent for several months on this issue. Compared to the campaign for the rights of minorities, the evasion of politics by liberal intellectuals has been quite shocking: apparently the rhetoric of security does not only appeal to non-acculturated lower middle class Americans. To the populist patriotism of the hoisted flags adorning doorways of houses was added the timidity of the well-educated, embarrassed to share company with the “masses,” yet so eloquent in their silence. Also for this reason, Dworkin’s role was extremely important. His two articles published in The New York Review of Books, on February 28 (“The Threat to Patriotism”) and April 25, 2002 (“The Trouble with the Tribunal”), were signs that the rhetoric of national solidarity was far from convincing. Since the early months of 2002, The New York Times has also progressively sharpened the tones of its criticism toward the Bush administration concerning rights and security.         

Security is, and remains, a problem. No one contests the necessity to protect the life of citizens from unpredictable and awful terrorist madness. Nevertheless, the argument of necessity is no longer seen as valid to justify the undiscussed monopoly of the “prerogatives” of security that the government has taken on, and the dissenters no longer risk being silenced by defeatism or anti-patriotism, as occurred the weeks after the terrorist attacks. Laurence H. Tribe, Professor of Law at Harvard, has criticized the measures that limit habeas corpus and the right to fair trial that the Fifth Amendment to the Constitution guarantees to all, be they American citizens or not, or, rather, to “human beings” who find themselves on American soil. The Bush administration, Tribe has argued, is mistaken when it advocates that all citizens and non-citizens can be detained indefinitely as “enemy combatants” on the basis of definitions (of enemy combatants) that the President creates.5        

Let us analyze the character and style of the criticism put forth by the intellectual critics. Dissent and criticism have appeal not to “human rights,” but to the American normative context. This aspect is of extreme interest especially if one pays attention to the fact that starting in particular from the bombardments of Belgrade and the intervention of NATO in Kosovo, American international politics was mobilized and ennobled with the argument of human rights. What is in question now is the violation of human rights on the part of the United States. Yet American critical intellectuals do not appeal to human rights to make their case against the liberticidal politics of American government (and its grave violations of the Geneva Convention). Even Dworkin, in his scathing criticism of the Bush administration, prefers to appeal not to human rights, but to the Bill of Rights and to the Constitution, even when those who are subject to Bush’s measures are not American. The argument that the critics use is implicitly that the appeal to universalism is redundant in this case because in the fundamental documents of the United States there is, incorporated and asserted, the same philosophy of human rights. In short, universalism, in America, is part of the normative context. As Dworkin recalls, the right to fair trial is guaranteed by the American fundamental law to all “human beings” who happen to be on American soil, whether they are citizens or not.         

There are two principles that guide normative criticism; one universal and one contextual. To the first principle, liberal American intellectuals are not of course unfamiliar and they resort to it whenever they criticize the violations of human rights that occur elsewhere or when they want to justify humanitarian military interventions in “hot” areas across the planet. These same intellectuals resort to the second principle when they shift their critical arguments to American politics. Universalism seems to stop at America’s borders, inside of which the grounds of universalism hold little weight in comparison to contextualism. The appeal to the national judicial tradition seems to retain the capacity to lend criticism since it already incorporates the universal values of the dignity and liberty of the individual.     

This contextual method, to which Michael Walzer has traditionally attributed an efficacy that abstract universalism does not seem capable of possessing, nevertheless shows its precise feebleness in this case, that of international terrorism, and of the instruments to face and defeat it. In the first place, the contextual method induces one to consider the United States as the only enemy of terrorist madness and, therefore, to think of terrorism as a national enemy. But this is exactly what liberals should avoid doing if they want to give efficacy to their criticism since the emergency politics of the Bush administration is founded precisely on a nationalistic perspective. In essence, the critics of the Bush administration are as much prisoners of the local or national dimension of the political and normative discourse as the Bush administration is.         

Furthermore, the principle of the context foresees or implies solutions that are national, while this brand of terrorism has a decisively international dimension. Starting from the local does not allow liberal critics to envisage or formulate solutions consonant with the “universal” dimension of this terrorism and the culture of rights. If it is necessary to do justice and bring the terrorists before a court of justice, if it is preferable to use the weapons of laws than those of the military, then we should transcend the American jurisdictional sphere and uphold and promote the International Criminal Court. Only from a “universal” perspective is it possible to develop a consistent criticism of the politics of President Bush, which, not by chance, has modeled itself precisely on a violation of international laws (the Geneva Convention) in the name of national interests.        

To give effectiveness to their criticism, American critical intellectuals should use “universal” reasons rather than resting anchored on contextual ones exclusively. If, in fact, the principle of due process is indubitably a universal principal translated into American laws, it is likewise true that potential “enemies” that should benefit from due process can strike wherever and whomever, not only in the United States and not only American targets. In essence, the “war” on terrorism, besides not being a “war,” is not exclusively an American affair and cannot be fought by the United States as though it were because this necessarily entails the violation of international laws (in the name of national interests), and ultimately an outcome and practice that, in the long run, could reveal itself to be counter-productive precisely for those countries that are targets of terrorism since it is they who have eroded the international conventions that support not only peaceful coexistence but also the condemnation of terrorism. The “terrorists,” wrote Iris Young and Daniele Archibugi, should be judged by a court that does not respond to national interests.6        

For that matter, if the sphere of American security is the preferred horizon, and if the Bill of Rights is the only normative sphere of reference, then it is inevitable that the weapons of the law will be used not in place of military ones, but along with them, and in fact subsequent to them. Criticism grounded in the Bill of Rights neither concerns itself with, nor actually contests what the American government does outside national boarders or military encampments, that is to say with what happens before justice enters the scene. This kind of criticism is essentially concerned with what the American government does inside its own borders and what it will do after the military action is over. The war and intervention in countries suspected of “fostering” or “harboring” terrorism is not substantially contested, but rather accepted as the means for “smoking out” and “arresting” suspected terrorists and bringing them to justice. Conservatives and liberals are distinguished at the moment in which it is about to be decided what kind of justice the captured suspects will be subject to. For this reason, the criticism of intellectual critics, as important as it is, remains limited and is never as strong as it could be were it formulated on the basis of a universalist perspective. The challenge that the defenders of rights should accept is to understand that in order to “protect” the laws and rights contained in the Bill of Rights, American politics should be judged according to universal criteria.

                                                        Notes