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2006-08-01,11:08 AM

The Constitution of Empire: Who Rules, Whose Rules?

Ronnie D. Lipschutz

Since September 11, 2001, the Bush Administration’s lawyers in the U.S. Department of Justice have been writing the new constitution of the global American empire.

This is not a constitution like many countries have: it has not been produced by any kind of constitutional convention or representative assembly. It is not subject to review by a supreme court. It does not balance power between branches of government. No, the new constitution of empire is a mostly-secret set of legal briefs that rationalize the U.S. President’s authority to act with impunity around the world. This constitution has been hard at work at Guantanamo Bay, Abu Ghraib, and the CIA’s black detention centers around the world as well as in the U.S. National Security Agency’s surveillance of electronic communications between American citizens and the Rest of the World. And the contradictions raised by the constitution of empire are reflected in the struggles among the White House, Congress, and Courts over the extent and prerogatives of executive authority. The paradox is that President Bush and his colleagues are asserting an imperial authority that is nowhere subject to the constraints of the U.S. Constitution, although this point has not yet been recognized by Courts or Congress.

The lawyers of the U.S. Justice Department did not set out to craft a constitution for empire, however much the plans of the Pentagon, National Security Council, and the Project for the New American Century pointed in that direction. Instead, Justice’s efforts developed after 9/11 in response to the exigencies of prosecuting the so-called Global War on Terror (GWOT) and, perhaps perversely, attempting to establish the basis for actions and policies whose constitutional legality might be challenged in and overturned by American courts. In doing so, those lawyers—the most notorious is John Yoo, currently on the faculty at the Boalt Hall Law School of the University of California,Berkeley—have laid the foundation for a legal order that transcends and, indeed, displaces international law and its reliance on sovereign states for implementation and enforcement: the Constitution of Empire.

How did this happen? After September 11, 2001, according to many pundits and scholars, “the world changed.” The use of jetliners to destroy the World Trade Center and damage the Pentagon were not only unprecedented in any number of ways, they also demonstrated the degree to which determined individuals could use the technologies of everyday life to mortally threaten America’s global interests and security. Attributing the attacks to members of Osama Bin Laden’s Al Qaeda—a name not used by the network itself—based in Taliban-ruled Afghanistan, the Bush Administration quickly decided to invade and overthrow that government, hoping as well to catch and kill as many jihadists as possible. From the outset of the GWOT, however, the United States was faced with a political dilemma: while national self-defense is permissible under international law, this extends, strictly speaking, only to attacks by one state against another. That the events of 9/11 constituted such an attack was by no means self-evident.

Why should this matter? After all, in the case of Afghanistan, it was evident that the Taliban was offering shelter to and receiving various benefits from Al Qaeda. What was not clear, however, was whether Bin Laden’s network was a foreign policy tool of the government or, instead, an autonomous player running its own international affairs. Nonetheless, faced with American determination to retaliate, and fearful of rendering the UN completely ineffectual, most of the members of the United Nations accepted U.S. claims of self-defense Thus, the United States invaded Afghanistan in October, 2001 with the intention of capturing the masterminds of 9/11 and, at the time, it seemed as though regime change and occupation would facilitate this goal. In retrospect, we can see that overthrowing the ruling regime in Afghanistan—whose role in the attacks was peripheral, at best—had only a minor impact on the jihadis. Hundreds or thousands of individuals were captured and imprisoned, to little effect. Five years later, Bin Laden remains at large—perhaps in Pakistan—the new Afghani regime is incapable of exercising control over the country, and Iraq is the new global center of terrorism (as indicated by the U.S. State Department’s recent annual report).

And what about all of those prisoners, many of whom seem to have been haplessly swept up in the American dragnet? Here is where we run into a serious legal difficulty. States are considered responsible for the disciplining and punishment of those who live within their sovereign territory, and it is individuals who are held culpable in national courts of law for the crimes they (may) have committed against states and the public order. Legally speaking, individuals cannot “declare war” on states; only states can do so. Hence, attacks such as those of 9/11 might better be regarded as criminal acts, as opposed to acts of war, therefore subject to the jurisdiction of domestic courts or the International Criminal Court.

From the political perspective, however, the Bush Administration could not afford to treat the attacks as criminal acts, lest it suffer attacks by both Democrats and neo-conservatives. Moreover, waiting on police and military forces to capture and then try such criminals would lead to interminable delays in exercising justice. Hence, the United States arrogated to itself the right of “hot pursuit,” imprisonment, interrogation, torture, and punishment. To provide a legal basis for these actions, the Justice Department lawyers declared that international law applied only to the citizens of states at war, and that the prisoners caught in Afghanistan and elsewhere did not fit this category. They were “illegal” combatants under the laws of war and not subject to any of the provisions of the Geneva Conventions or other appropriate international legal instruments. In effect, they were nationals of no place and under the legal jurisdiction of no one—except, in this instance, their warders.

Since 2001, a considerable number of such individuals, as well as those caught up by the sweeps have been imprisoned on these terms. They are “subjects” of an imperial executive, living in non-sovereign spaces over which no state has legal jurisdiction (e.g., Guantanamo, which is on Cuban territory but not under Cuban sovereignty, occupied under an indefinite lease that Cuba refuses to recognize yet, according to the Furthermore, the Bush Administration has asserted its legal authority to surveil, arrest and imprison in such spaces any individual who it deems a threat to American interests, wherever in the world these interests might be located. Of course, many of these people are arrested locally and rendered globally, so to speak.

Will the constitution of empire become the basis for the next world system? For the moment, many governments dislike the United States’ flouting of international law, but have little way to oppose it and think they benefit from “getting bad guys off the street.” By the time they recognize fully what is happening, it will probably be too late to undo imperial law and the policies and practices it has brought into being. Nor will anything change on January 21, 2008, when a new U.S. President takes office: he or she will happily follow in the footsteps of George W. Bush—as well as all of his predecessors back to 1946—in establishing the global legal footing for the American Empire.

Ronnie D. Lipschutz is Professor of Politics at the University of California, Santa Cruz (rlipsch@ucsc.edu). Thanks for Mary Ann Tétreault for her comments and advice.

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