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‘Enemy Combatant’ or Enemy of the Government?

‘Enemy Combatant’ or Enemy of the Government?

Belgian sociologist Jean-Claude Paye believes David Hicks’ treatment by America and Australia has ramifications far beyond a simple nine months jail term. Hicks’ rendition from Afghanistan and detention in Guantanamo – as well as his subsequent local jailing in Adelaide with the acquiescence of the Australian government – is a foundation stone for the edifice of the new American Empire, Paye says.
Source:  Monthly Review, Vol 59 No 4
So asks Belgian Jean-Claude Paye *, in a detailed analysis of American foreign/legal policy which, he says, is aimed at establishing a 21st century Empire of America. Here’s the part of his Monthly Review article where he discusses Australian David Hicks, and what the Hicks’ situation means for the world.

By introducing the concept of war into national law, the latest US 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.

(access to the full text here.)

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.[2]

The Australian government is also considering placing David Hicks under administrative control after his release.[3] 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.[4] 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.[5] 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.

* 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.

[1] Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 2007). 20. “Le tribunal militaire de Guantánamo rend sa première condamnation,” Le Monde, March 31, 2007.

[2] “Le tribunal militaire de Guantánamo rend sa première condamnation,” Le Monde, March 31, 2007.

[3] Caitlin Price, “David Hicks Could Face Australian Control Order after Guantánamo Release,” Jurist, April 1, 2007,

[4] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998).

[5] Domestic Security Enhancement Act of 2003,

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