Do the prisons of the liberal rule of law stand up to the endurance test of terrorist suicide bombers??
What for Jack Bauer, special agent of the CTU and action hero of the cult series "24", What has long been part of professional life, namely torturing or deliberately killing people in order to learn more about the nature and circumstances of possible attacks or to infiltrate criminal organizations instead, has so far been forbidden in a democratic constitutional state. Whether this will continue to be the case in the future or whether this practice will soon have to be changed has been the subject of heated and controversial debate in recent weeks, both on the opinion pages (Floskel; Pro; Kontra) and in the upscale German feuilleton (Ganz gleich zu welchem Zweck; Was verteidigen wir; Es geht ums Prinzip). At the heart of the matter has always been the question of whether, in order to prevent the deaths of hundreds of others, law enforcement officials should be legally and/or ethically permitted or even required to subject persons suspected of planning an assassination, of complicity or of assisting in it, to painful torture "Special treatment" to be subjected to.
As one of the means against terrorists, I consider torture or the threat of torture to be legitimate.
The debate, which Michael Wolffsohn, well-known publicist and university lecturer at the Munich University of the Armed Forces (whether carelessly or consciously, one does not know) in the ARD talk show "Maischberger" for Germany (advantages of torture), which is often forgotten, is not new.
As early as the fall of 1977, when the FRG was in a state of emergency because of the Baader-Meinhof terrorism in the "State of war" and parliament and government pondered harsher emergency decrees than the one passed on 24 June. When the RAF passed the constitution in June 1968, this discussion already surfaced. The murders of Jurgen Ponto and the president of the Kammergericht, Gunter von Drenckmann, and especially the kidnapping and murder of the president of the employers’ association, Hans-Martin Schleyer, had given rise to this discussion. Even then, Lower Saxony’s Minister President Ernst Albrecht wondered aloud whether, in view of this "internal state of emergency" The German government must not be allowed to torture RAF prisoners in order to obtain information about a planned assassination or a kidnapped victim.
Twenty-five years later this story was repeated. Wolfgang Daschner, police vice-president of Frankfurt, threatened the confessed kidnapper of the Frankfurt banker’s son Jakob von Metzler with severe pain if he did not inform him of the kidnapped boy’s whereabouts (Back to the Middle Ages)?). The public outcry that immediately arose was enormous. Only a few rushed to the officer’s aid and, like Geert Mackenroth, chairman of the German Judges’ Association, asked whether the threat of torture might not be permissible to save a valuable legal asset – such as the life of a child. The public prosecutors, however, saw it differently. They brought charges against the official for serious misconduct in abuse of his authority and position as a public official. If found guilty, he faces up to five years in prison. Even the threat of physical torture is considered a violation of the unconditional prohibition of torture, which is not allowed to be accepted even by invoking a supra-legal emergency.
I’m not in favor of torture, but if you’re going to have it, it should damn well have court approval
Mittlerweile scheint dieser Rechtskonsens nicht mehr uberall und von jedermann geteilt zu werden. Not only Israeli and US legal scholars and columnists (Torture could be justified; Time to Think About Torture; The intellectual pioneers of torture and arbitrary justice, The New Dark Age Revisited) cast doubt on it. Auch renommierte Professoren, die Menschenrechte an Eliteuniversitaten lehren und sich der politischen Linken verbunden fuhlen, halten Drohung wie Verabreichung korperlicher und seelischer Qualen fur ein geringeres ubel, wenn es um die Verhinderung von Terrorakten geht.
In order to defeat evil, we must use evil means: the indefinite arrest of suspects, the use of coercive means in the case of crimes, targeted killings, and even the waging of preventive wars. These are evils because each of these measures deviates from national or international law and because they kill people or deprive them of their liberty without due process of law. They can only be justified because they avert the greater evil that has.
The Bose is mainly the so-called "people "ticking-bomb terrorists", people who use dirty bombs or other forms of weapons of mass destruction, calculating with their own deaths as well as the deaths of many others. Since the attacks on the World Trade Center, the gas attack on the Tokyo subway, the Moscow theater robbery, the blowing up of trains at Madrid train stations, or the almost daily suicide bombings in Haifa, Tel Aviv, or Jerusalem, the occurrence of such events has been "hands-on" .
If the U.S. were to suffer another attack like the one on September eleventh, the soon-to-be "like a pale prelude" of the same appear. Afterwards it could well be, according to the Harvard professor, that over the public life, "for a generation a shroud of melancholy, anger and fear" This is a finding shared by Richard Rorty, even if he comes to completely different conclusions.
The normal proves nothing, the exception proves everything
It is no wonder that in the face of such gloomy prospects, rulers in Jerusalem, Moscow or Washington have left their country (perhaps not yet factually, but certainly mentally) in a state of prolonged "Siege-" or. "state of exception" admonish.
The Italian legal philosopher Giorgio Agamben recently subjected it to a precise structural analysis. In the book of the same name, published by Edition Suhrkamp, he defines the "State of emergency" as a kind of "zero point of the law", as a form in which interception is suspended and law is neutralized.
Unlike Carl Schmitt, who still described it as that state in which a sovereign restores the validity of law by virtue of his authority, be it through special powers, emergency decrees, or through the temporal override of valid norms, Agamben separates this realm of disorder and rulelessness from the sovereign and its decision-making authority, in order, in the best Benjaminian tradition, to reduce it to its "pure form" to lead back.
The anomie, the state of nature, Agamben agrees with Walter Benjamin, prevails within the law as a possible state of exception. The foundation on which the liberal constitutional state and modern civilization rest is therefore extremely fragile. At any moment, by an unexpected event, it can break up and erupt.
More than a decade ago, when the weariness of the postmodern media society became almost unbearable – recently dissected again by Norbert Bolz – some poets and thinkers already flirted with it and reminded country and people of the permanence and omnipresence of the state of emergency.
For example Botho Strauss, who "war between the traditional and those of the constant carrying away, discarding and extinguishing" or Hans-Magnus Enzensberger, who warned of the war of all against all in the subway stations of our metropolises; or Jean Baudrillard, who saw Western culture going down with a loud bang (which was realized for him on September eleventh).
the state of exception in which we live is the rule.
As an archetype, Agamben uses a case largely overlooked by legal historians "dark paradigm" of history, that of the Roman Iustitium. If the republic was threatened by danger, from outside (conquerors) or from within (conspiracy or betrayal), then the Roman senate could take a senatus consultum ultimum obtain. This one allowed him, "all conceivable measures" so that this state of emergency was averted from the Republic, and "order, tranquility and security" of the state remained guaranteed.
At Iustitium, The word Iustitium translates as much as "Suspension of the law", it was therefore not a question of suspending the judiciary, but of suspending the legal system as a whole. In this perspective, the state of emergency no longer appears as an expression of the highest power ("The sovereign is the one who decides on the state of emergency"), but as the absence of any law. The state of emergency is a "space without law", in which all legal regulations and distinctions (private-public, domestic-civil, military-civil) are leveled out.
Despite the semantic drift that the concept of the "State of emergency" in the course of time – sometimes it is associated with the "the public mourning for the death of the sovereign" sometimes, as knowledgeable readers of Bataille, Hemingway or Lowry know, it appears in the fiesta or in the intoxication, in the carnival or in the "Dance on the volcano" periodically resurface -, Agamben succeeds in showing that he has a "Secret alliance" with the law. In Iustitium has therefore "mythical power" a power of command (imperium), which is Auctoritas The Taliban is a powerful group that consumes the power of the ruler and claims authority beyond law and order.
This force (violentia) is also the reason why the state of emergency, despite all attempts at enclosure, legalization and sacularization, in modern societies "regularly" returns. Just as the onto-theological strategy is aimed at "pure being in the net of the logo" and constantly threatening to fail, the state power failed in its attempt to incorporate the anomie by declaring a state of emergency and to bring the violence (exception) back into its legal context (rule).
It becomes understandable why for Benjamin the state of emergency is the rule, it must be the task of all the oppressed to "real state of emergency" to radically change their situation. The interwar period, the Weimar Republic and the rapid social rise of fascism also offered sufficient illustrative material. And it becomes clear why both the power and its enemies, the state as well as the terrorist, are out to bring about this state of "Zone of absolute indeterminacy" which, as Schmittians know, is the preferred space and the very own subject area of the political.
Here, where legal norms lose their validity, where civil war and revolutionary violence usurp the law, and all that remains of law and justice is violence as such, factions struggle for power with the highest intensity and by all means, bloody and bloodless, with bandages and media, guns and pictures (see the interview with Richard Perle); here, where all differences between exception and rule, peace and war, auben and domestic politics are eliminated, state and terrorism appear as Janus-faced offshoots of a single system, where legitimate and illegitimate modes of action become indistinguishable and every action is justified by reaction.
The suicide bombing committed by a Hamas sympathizer on a school bus with children on the morning of any given weekday is then no different from state-imposed terror, which orders its militarists to target people from the air, to arbitrarily intern and torture them, or to demolish entire neighborhoods or chains of houses with bulldozers.
Government everyday life
No Sacrifice is Too Rough for Our Democracy, Less Than Ever Even the Temporary Sacrifice of Democracy Itself.
What is so objectionable about Agamben’s investigation for all do-gooders, human rights activists, and constitutional patriots is not so much this genealogical derivation or his re-reading of the philosophical extremism of the interwar period, but rather the fact that he believes he has discovered a tendency in modern democracies to "state of emergency" to "prevailing paradigm of contemporary governance" makes.
Agamben points out that even the positivism of the majority, democracy and consensus, offer no sure protection against casarism, tyranny or dictatorship. For him, too, democracy and dictatorship are not real opposites; democracy merely propagates another option for ruling and governing, which changes its form like a chamaleon when necessary and is then used as an instrument of political power "all possible measures" to ensure their continued existence.
If one considers the governmental practices of all those democracies that are currently threatened or affected by terror and acts of violence, even the sharpest critic cannot help but make a sympathetic assessment of his observations. Volkerrechtsbruche, Praemptiv-Strategien und "targeted killings"Patriot Act, offshore internment and preventive detention; far-reaching special powers for intelligence and law enforcement agencies, disregard for the Geneva Convention and legal opinions that provide prasidial powers for torturing prisoners – all these are signs that the meaning and nature of democratic legal systems are beginning to change fundamentally.
In a large number of democratic (Israel, USA) or democratically legitimized states (Russia), it looks as if the "deliberate creation of a permanent state of emergency" to a "current practice" became. The rulers seek to maintain it by all means at their disposal, whether by means of periodic alerts (Code Orange) or by spreading rumors of imminent attacks. Prudent minds such as Richard Rorty, quoted above, have therefore voiced the fear that the Bush administration will not "in the same way" could "as the Nazis once did with the Reichstag fire." Already now it seems to him the "suspicion that the war on terror is potentially more dangerous than terrorism itself".
And indeed, there is evidence that the governments in Jerusalem, Moscow and Washington, in particular, have a vested interest in the continuation of the war "State of Siege" have. In any case, the 9/11 Commission’s final report, first unveiled in almost minute drama by the Washington committee last week, reveals not only what nightmare scenarios terrorist forces are capable of, but also how the White House intends to capitalize on them.
Since an end to the War on Terror is not in sight, the fear of further attacks is obviously used to politically legitimize moral-civilizational missions and/or expansive power and space policies. The war in Iraq and the violent securing of oil transport routes; the Israeli occupation policy, the illegal appropriation of the Holy Land and the preventive disposal of suspected terrorists; the bloody suppression of the Chechen resistance, the torture of prisoners by the Russian army and the installation of willing protagonists are examples of how governments, with reference to self-defense, know how to instrumentalize the state of emergency for easily understood political purposes.
Stopping the downfall
So who is the empire, who is the holding power??
If this is too mono-causal, too simplistic, left-rustical or conspiracy-theoretical for you, you can also look up in impactful geopolitics. Still during the Cold War, a good three years ago, Zbig Brzezinski made his countrymen aware of a "hostile world" by which he saw his country surrounded. In order to preserve its national and security interests, the USA had to be prepared to take, "all conceivable measures" to seize. The result, as is well known, was later SDI and the double decision of the NATO. Decapitation strategy and comprehensive protection of its own territory should allow the country global freedom of movement.
Since the former rival for world power, the Soviet Union, disappeared from the political world stage without a sound and postmodernism broke out on its territory, the only world power is faced with the breakout "of worldwide anarchy" confronted. To this Out of Control and to prevent the creation of new networks of evil, America, according to Brzezinski (Politics of Coarse Space), even before September eleventh, had been its main focus "to aim at a worldwide ‘democratic enlargement."
His former classmate at Columbia University and later Secretary of State, Madelaine Albright, later coined the term the Indiscriminate Nation, with which she wanted to express that in order to prevent "international anarchy" and the custody of a "Minimum level of geopolitical stability" a US hegemony "indispensable" be. The argument that U.S. strategists are now fighting at the think tanks more or less revolves around the question of how this role of global "Aufhalters" The question is whether the U.S. should act together with others under U.S. command (political leadership) or act in concert "Go it Alone" with changing partners and ad hoc coalitions?
They’re in the business of panic and control.
But once the state of emergency has become one government action among others, individual liberties become a negotiable mass that can be put up for disposition on a case-by-case basis, in the case of actual threats as well as imagined ones. For the people, this is usually hardly verifiable, since the public and its media (see USA, Israel or Russia) act as catalysts rather than watchdogs and suppress protest notes against the government.The most visible example of this change in the shape of the legal system is the policy of the "oldest democracy in the world". Since the oceans have failed as natural protective walls, the evil resides also within the belts of prosperity and the enemy (terrorist cells, networks) can strike at any time and anywhere, homeland security enjoys top priority. Security policy no longer encompasses only the eaves, but increasingly the domestic sphere.
Consequently, in order to prevent further damage to his country, President Bush ied an executive order just two months after the attacks on the Twin Towers "military order", that removes the legal status of individuals and creates legally unclassifiable beings. From now on, any citizen suspected of terrorism or anti-American activities will be subject to a special legal status that threatens them with indefinite detention without a court order or the right to legal representation. Through it "the legal status of these individuals was radically erased". At the same time beings are brought forth, "who can neither be legally classified nor named". Neither accused nor sentenced are these prisoners blobe "detainees", those taken into custody, who, without any legal existence, are subjected to a purely de facto domination.
This arbitrariness becomes spatially visible in the concept of the camp "Camps" (Where does the right end?). In ex-territorial territory, beyond the reach of U.S. jurisdiction, the U.S. government has meanwhile established a whole network of such "lawless space" The Swiss government has set up a number of detention centers in which the rule of law is suspended and those detained there are subjected to robust interrogation practices.
In Guantanamo, Bagram, Naura or Diego Garcia, the state of emergency outlined by Agamben has long been made permanent. Between norm and anomie, law and will, exception and rule, there is no distinction anymore. In the camp, the persons are stripped of all their legal, ethical and political regulations. Reduced to their biopolitical substance, deprived of all their dignity and decency, they are nothing more than bodies, naked life, subject to arbitrary use and domination by others (Guantanamo Limbo). Agamben puts them under the homo sacer equal to that man of Roman law who was unfit for sacrifice, but, since "outlawed", could be killed at any time and by anyone, without fear of punishment later on.
Presumption of exoneration
I would also like to be liberal… But the world is not such that you can be liberal.
Agamben’s analyses get tricky when he compares the detainees of Guantanamo, Naura, or elsewhere with Nazi concentration camps and the legal status of those incarcerated at Auschwitz. Were Jews at least still allowed to vote, their "judiciary" To retain identity, the detainees also taken this identity.
As wrong as this comparison is in essence, because exactly this identity was the reason why Jews were put into concentration camps, for Niels Werber (Alles Nazis) this equation seems to be one of the reasons why Agamben has been so successful in Germany. With his attacks on Washington and Jerusalem, Agamben exonerates the Germans from historical guilt. Endlich stunden auch andere am Pranger und konnten fur etliche Schandtaten und Volkerrechtsbruche verantwortlich gemacht werden.
The former Sondermusterschuler would no longer hold the buck of the past in his hands, but could pass it on to his former liberators and somehow always unloved occupiers. Unlike them, the Germans had learned their lesson, they had purged themselves and purified themselves internally, which is why they rejected military violence, opted for pacifism and, at the very most, adhered to the rule of law "humanitarian missions" involved. In addition, it fuels the latent anti-Americanism that is still virulent in post-war Germany (occupiers), later in neo-Marxism (Yank, Go home) and currently among left-wing opponents of globalization (Empire), who hold America responsible for all the ills of this world.
The latter is certainly correct. If one visits the forums of this medium from time to time, one often has the impression that all potential readers of Konkret, Freitag or Junge Welt use this platform to are themselves of the validity of their monotheistic worldview. What, on the other hand, is the "Exoneration suspicion" one could also come to a different conclusion. It is precisely the memory of the millions of years of suffering that robust power and spatial policies inflict on people that is still so vivid and present in many Germans that could be the reason why Agamben’s books are so widely received in this country and are usually received so enthusiastically.
The Americans are amateurs. They should have taken lessons from the Israelis.
But perhaps the situation is quite different again. Perhaps all the debates about torture, state arbitrariness and lawlessness are not about America at all, but about Israel. Could it not also be, since public criticism of the Jewish state is often equated with anti-Semitism, that America is playing a kind of proxy role here, acting as a clandestine projection surface to blow off steam against the Jewish state?? Could it not be that one beats the sack, but means the donkey?
The fact is that the establishment of "Camps", Nowhere in the world are the security measures with border walls, exclusion zones and checkpoints as advanced in terms of space policy and as technically mature as in Gaza, Nablus, Jenin or Hebron. In Gaza alone, well over a million people currently live crammed into a very small space. Without a court order, they can become victims of arbitrary house searches, arrests and robust interrogation techniques by authorities and secret services at any time and on the basis of mere suspicions.
Until 1999, for example, Israel also allowed the use of "mabful physical and mental torture" allowed. A rulebook defined the unconventional interrogation techniques to be used with prisoners in order to "soft-boiling". Shackling in a hunched position and sleep deprivation were apparently just as much a part of this as playing music that deafened the ears, preventing them from going to the toilet, or keeping them in icy places for long periods of time. From then on, the Israeli Supreme Court criminalized these practices.
A year later, after the outbreak of the second Intifada and several suicide bombings, Israel apparently returned to these practices. What happened at Abu Ghraib, which for weeks caused worldwide outrage and self-accusation in the U.S. (Regarding the Torture of Others): beatings, humiliation and sexual abuse, defilement with excrement and trophies pictures of prisoners, have been common practice in Israel for decades, with the express approval and support of the Israeli public, as a report in the Washington Post asserts, referring to reports from lawyers, prisoners and members of human rights organizations such as B’tselem.
If one follows the well-researched report and the eyewitness accounts quoted in it, then since the ban by the Supreme Court, the corruption techniques have become more sophisticated and professional. Meanwhile, the prisoners were subjected to new forms of kicks, blows and beatings, new inhumane conditions, which, however, are not explained in more detail.
Compared to Israeli interrogation practices, says former prisoner Anan Labadeh according to this report, the Americans are amateurs:
What the Israelis do is much more effective than beatings. Three days without food and without sleep and you’re eager to tell them anything. It just shows us the Americans are amateurs. They should have taken lessons from the Israelis.
Unlike the Americans, such torture operations, as demanded by Alan Dershowitz, run strictly according to rules. Their way of breaking resistance among prisoners follows an elaborate system of. "Their strategy is much improved", says Ziad Arafeh, for example, a political activist who has been the victim of such interrogation techniques several times. "They give you food without salt that makes you weak, and they prevent you from sleeping. They’re more clever and more experienced."
All this is not new – despite Amnesty International and the Geneva Convention. Certainly there is torture elsewhere, in Moscow and Ankara as well as in Beijing and Jalalabad. But compared with the atrocities committed by Saddam’s henchmen in Abu Ghraib, for example: Chopping off hands, rubbing out tongues and cutting off heads, the cruelties inflicted by Americans on prisoners are rather peanuts and, according to Richard Perle, should be considered abuses rather than torture.
This may be so. Comparing the bad with the worse leads nowhere, at most to the abyss. Unlike Iraq, China, Algeria or Pakistan, America and Israel are constitutional states. The legal system is binding for the rulers and cannot be left free to the political agenda. The moral disaster that the images of Abu Ghraib represent for the self-proclaimed liberators of Iraq is so gross precisely because the country pretends to act in the name of universal values and the highest moral principles.
"We are not Holland or a Benelux country", Ehud Barak counters such accusations and tries to justify torture practices and the targeted killing of people by saying that his country is a state, "living under the constant threat of terror." Even Anan Labadeh can understand this concern to some extent.
It became a question of a ticking bomb – how do you balance the need to find that bomb before it goes off at a restaurant or a pizza store or a checkpoint with the need to respect human rights?
But where is the dividing line? Where does the coercion stop and the torture begin?? When do legal practices turn into arbitrary acts, when does the rule of law become a state of injustice?? How does the regular army of a democracy differ from a gang of robbers, paid soldiers and gangsters, when the law becomes hostage to terrorists and democracy adapts the law to political-military realities?? Shouldn’t it be the strength of the rule of law that it categorically rejects certain methods of its defense?? Not because of any good values, but simply because otherwise he would have to destroy himself?
In the river
If we now start to talk sense about torture, it is the surest proof that we have become crazy.
Let’s see the situation despite all the disenchantment, excitement and "objective mendacity", so jungst Lorenz Jager in the FAZ uber die deutschen Folterdebatten (Schlagerschatten), nuchtern und abgeklart, das heibt mit den Augen Giorgio Agambens.
Just as power and democracy seek to include (rule) the other and the actual excluded (the state of exception) in its legal system in order to perpetuate its continuance and escape auto-destruction, so the current attempt is to make the torture and targeted killing of people one legally and highly judicially permissible measure among others. Ulrich Raulff’s determined attempt (to tighten up the situation) to cap the discussion by decree of reason must fail, however.
It may well be that certain values or taboos must remain beyond the reach of reason so that rational discourse can justify them. It is just as true, however, that it is precisely this that produces such monsters in the first place. Only the precaution, the promise and the necessity of the state to protect its citizens, to prevent harm to them, or to prevent the wiping out of entire cities by WMDs, produces such monstrosities as are becoming commonplace in Israel and America, and soon perhaps in other democracies as well.
The question of whether democracy and the constitutional state can withstand these temptations (katechont) is a legitimate and implicitly rational one and does not represent an aberration into any eschatologies. Only those who have a halved idea of rationality can understand the state of emergency as a mystery or natural event. But that is exactly what it is not. Rather, it is the political in its very own form.
But it should be just as clear: Neither emergency nor exception should be allowed to become a staff or guideline for legal action and judgment, nor should the international legal system be allowed to adapt itself to the Israeli or American legal system and thus become the rule. The asymmetric war cannot and must not be a reason to deactivate the moral division between civilization and barbarism. A distinction must continue to be made between the rule of law and terrorism, which is also a real distinction. Every state that fights terror with counter-terror and pays back with the same or even sharper means as the terrorist inevitably becomes a criminal, a criminal or a state terrorist itself.
Legal terms are in a state of flux, who would deny that?. They are not fixed forever and are subject to historical change. The equally urgent and necessary discussion about active euthanasia or the cloning of human beings proves this. Nor is there an anthropology that is fixed once and for all, a universal image of man, despite all Christian teachings. If, however, legal concepts are rethought with a view to the future and placed at the discretion of power, this will certainly lead to the end of liberal law and thus to the end of the rule of law, as Hitler’s Germany showed.
The greatest achievement of the Enlightenment was, and still is, that it managed to bind Gulliver with a web of legal rules, legal principles and legal procedures. Democracies should not lightly give up this success out of a momentary internal emergency. The history of the RAF, the Red Brigades and the Action Directe shows that it can be done differently, even if they cannot be compared to suicide bombers of today. During the Cold War, the danger of the disintegration of entire states, indeed of the entire globe, was many times greater, both at home and abroad. Despite all this, no one had the absurd and insane idea of declaring torture, inquisition and targeted killing a legal remedy.
Once the rules and principles of the rule of law have been eroded, see the Patriot Act or the overflowing discussion about preventive detention, they are difficult to revive. Comparisons should be avoided as far as possible. Mostly they lead to crooked pictures. But with the loss of fundamental rights, the unboundedness of power, and the elimination of coercion, there is more at stake than the death of a few hundred or even a few thousand people, as bad as that may be for those affected.
Giorgio Agamben’s books, State of Exception (2004), What Remains of Auschwitz (2003), and Homo sacer (2002) are published by edition suhrkamp, essay collections such as: The Coming Community (2004) and Bartelby or Contingency (1998) published by Merve in Berlin.