Homeland Security, its Law and its State

A Design of Power for the 21st Century

Christos Boukalas

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9781138666504
• eBook ISBN: 9781136025686
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book assesses the impact of post-9/11 domestic counterterrorism policy on US political life. It examines political discourse, law, institutional architecture, and state-population relations, and shows that 'homeland security' is a project with wide-ranging implications for democratic institutions and culture. These implications are addressed through a novel approach that treats law and the state as social relations, and relates developments in law to those in the state and in social dynamics. On this basis, the book examines the new political representations in counterterrorism discourse, especially regarding the relation between the state and the population. It examines the form and content of counterterrorism law, the powers it provides, and the structure and functions it prescribes for the state. By focusing on the new Department of Homeland Security and the restructuring of the intelligence apparatus, the book assesses the new, intelligence-led, policing model. Finally, it examines forms of popular support and resistance to homeland security, to discuss citizenship and state-population relations.

The author concludes that homeland security has turned the US into a hybrid polity; the legal and political institutions of democracy remain intact, but their content and practices become authoritarian and exclude the population from politics. These legal and political forms remain operative beyond counterterrorism, in the context of the present economic crisis. They are a permanent configuration of power.

This book is an indispensable companion for students of (counter-) Terrorism and Security Studies, Politics, Human Rights, Constitutional and Criminal Law, American Studies, and Criminology.

1 Introduction: homeland security, the US polity, and social dynamics

This book raises the question of how counterterrorism policy affects the ability of the US population to participate in politics. To provide some answers, it explores US domestic counterterrorism in the wake of the attacks of 11 September 2001 (9/11). It examines the forms counterterrorism takes in political discourse, legislation, institutional design and practices, the organisation of popular support to homeland security, the forms of resistance to it, and the repression it seems to entail for certain kinds of political activity. Based on this examination, it argues that homeland security effectuates important changes to the overall shape of the law (the ‘law-form’) and to state institutions and powers (the ‘state-form’). These changes affect, in turn, the ways in which the population can participate in politics. Therefore, homeland security introduces a new design for power relations. This study outlines some main features and modalities of this new design, and observes that the homeland security modalities are also employed to manage the current economic crisis. This implies that the state- and law-forms set by homeland security outlive the context of 9/11 and constitute a (relatively) permanent paradigm for doing politics. In this manner, this book seeks to raise the question – and provide some (partial and provisional) answers – regarding the overall effects of counterterrorism on US political organisation and culture. In simple, and agonising, terms, this question can be summed up as: is the twenty-first century US a democracy? In what sense?

Before explaining how the book grapples with this question, it would be useful to declare what this book does not do. This will help highlight its difference from other security-related studies, and will save the reader time and effort by informing her what she should not expect to find in its pages. This negative introduction will also help to outline some aspects of this study.

What this book is not about

This book is not concerned with, or interested in, terrorism. Nowhere will the reader find information on, or analysis of, the organisational structure, the operational modes and capabilities, or the leading personnel, their habits and idiosyncrasies, of Al Qaeda or any such organisation. There are two reasons for this. First, because the author (and, it may be said, the reader too, however well informed) knows nothing about terrorist groups and their plans, and activities. Everything we know about terrorism derives from the state: from politicians, security and terrorism experts, and secret agents. The knowledge which the mass media disseminates, and even the analyses of independent scholars, is based on material deriving from the state, which we have no means to either verify or falsify. Even the all-enlightening ‘leaks’ derive from the vaults of some secret agency and are done by its personnel. They are more telling as symptoms of intra-state malfunction or conflict, rather than the ‘real truth’ about terrorism. As knowledge on terrorism is monopolised and selectively disseminated by the state, it can be argued that official knowledge about terrorism is a conspiracy theory turned on its head. I am not claiming that all state-derived knowledge on terrorism is false; I claim – and this is precisely the point – that we have no way of knowing whether it is false or true. We can only take (or leave) it on the basis of faith.

Indeed, the common refrain of those in the loop (high-clearance security and political personnel) sounds conspiratorial: ‘If you had seen what I have seen… you would not complain about the intrusiveness of security measures, or worry about their (un-)constitutionality’. This justification seems to derive straight from the pages of Leo Strauss, whereas the Truth is so ‘terrible’ that only a chosen few ‘State Leaders’ should be able to access it. The rest of us – the herd – will turn into stone upon beholding it, so we should therefore put our mind at ease and do as the leaders tell us (Strauss 1968: 25–26; 1983: 178–188; see also Drury 1988: 133–181; McAllister 1996: 202–204, 211, 219–220). This apocalyptic Platonism (based on the knowledge of Evil rather than Good) constitutes a platform for government based on blind faith, where those in possession of an alleged political expertise can (and must) tell the herd how to live, and the herd has no option but to believe them and obey – for its own good. So, the knowledge of terrorism is monopolised by select state personnel, and is thoroughly concealed from the population. Policy based on this knowledge is profoundly anti-democratic, for democracy is a political organisation where the people decide on the basis of full knowledge of all available facts relevant to the decision.

The second reason terrorism is out of the remit of this study is that it does not affect our lives. The extraordinary effort, resources and discourse dedicated to the subject by individual citizens, states and international organisations make this statement appear odd. Yet, it is more likely that people like us will lose our life in an accident in our bathroom than in a terrorist assault – and the possibilities of either happening are insignificant (Schneier 2006: 26–31, 238). The only way in which terrorism affects us is through counterterrorism.

As all knowledge of terrorism derives from the state; and as all relevance of terrorism resides in state policy against it, this book ignores the terrorism shadow-play and cuts straight to the question of the state and its counterterrorism policy. A brief exposition of how it does this can be found below. Before that, an explanation should be given about another omission.

The second thing this book does not do, is provide advice on how to improve counterterrorism policy. Recommendations for improving counterterrorism mainly fall into two categories: enhancing its effectiveness, or making it more democratic and/or constitutional. It is impossible to make recommendations on the effectiveness of counterterrorism, as we do not know what terrorism is. To suggest how security can do more and better, when we do not know to what threats it is meant to respond, is absurd. It will also be avoided for another reason. Counterterrorism, like every state policy, is not a technical problem demanding a ‘better’ solution. It is a strategy devised by state actors on behalf of certain social forces and representing their interests – possibly to the detriment of other social forces and interests. Thus, the question of ‘improvement’ cannot be answered in general, but only from the point of view of social forces and interests. Simply put, both the author and the reader may have an interest in enhancing the effectiveness of counterterrorism if we think it is something that would save us from a likely, violent, death. If, on the contrary, we think that counterterrorism considers us as suspects and monitors our daily activity, we may not want it ‘improved’ at all. In other words, the question of effectiveness conceals the political character of counterterrorism, and reduces it to a technical issue. The question of how to make it ‘work better’ precludes the discussion about whose interest does it primarily serve, whether we really want such policy, and on what terms.

The question of democratising counterterrorism, and making it abide to legal standards and constitutional rules, is part of this (political) discussion. While this book is, essentially, a prolonged assessment of the democratic character (or lack thereof) of counterterrorism, it does not suggest how to make it (more) democratic or constitutional. We have already noticed a profoundly anti-democratic element at the very core of counterterrorism policy: it is determined on the basis of knowledge and information which are sealed from the population. Thus, the population is, from the very start, excluded from having a say in determining policy, or control its operations. As long as this condition holds, any attempt to democratise counterterrorism is just rearranging deckchairs. Moreover, even the democratisation question is usually dealt with in a mechanical manner, as if it were a mere technicality – making any police practice ‘democratic’, as long as there is some judicial overview or congressional review. In this manner the question of democratisation abstracts legal and political institutions and practices from the social dynamics and political strategies which create, reproduce and alter them. Due to its formalism, the question of democratisation is reduced to concerns about the ‘balance between security and liberty’.

Finally, a third omission of this book is that it does not consider US counterterrorism policy beyond its borders. The reader will not find here a discussion of the Iraq and Afghanistan wars, or of the manners in which the US conducts its international counterterrorism policy – in the United Nations (UN), the North Atlantic Treaty Organization (NATO), or through multi- and bilateral agreements with other countries. This is the least defensible of this book’s omissions, resulting only form the need to limit the scope of the study, and the time and space of writing. I therefore made the (arbitrary) decision to artificially separate an exterior branch of counterterrorism policy (‘global war on terrorism’) from a domestic one (‘homeland security’), and focus exclusively on the latter. This cancels the opportunity for a discussion about the role and ability of the US to define international law and the policy of international organisations; and on the relative gravitas of such institutions in comparison to ad hoc multi- and bilateral agreements and impromptu alliances. Stressing, perhaps, the artificial character of the separation, some developments in the ‘foreign’ front will be considered in this study, as they reverberate in ‘domestic’ affairs – the Iraq war, for instance, is present in this book to the extent that it influences resistance to homeland security, or helps galvanise power relations among different fractions of capital.

With these omissions confessed and, to some extend, explained, it is time to take a look at what this book actually is about.

What this book does – and how (and where)

In a sense, this study attempts to answer one question only: how does counterterrorism affect the ability of the US population to participate in politics? The simplicity of this question is deceptive. In order to answer it with the slightest claim to adequacy, the political organisation and culture – the polity – of the US must be considered, together with the changes counterterrorism affects on it.

A first factor complicating this question is that ‘politics’ is not only the activity of professional politicians and state managers, but every activity, individual or collective, which attempts to influence the way we live communally; every activity which refers to the questions of the institution, organisation, direction and administration of society. Thus, the question of the population’s participation in politics is far from limited to voting or party membership. It includes a vast range of issues regarding the (formal and actual) possibilities to form and express opinions, to organise and act politically, and to influence, take, and implement decisions.

The question of political participation is further complicated because the ‘population’ is not a uniform entity. It comprises different groups and fractions (or ‘social forces’), which may have differing ability to influence politics. The reader would acknowledge that her capacity to influence politics is probably less than that of Bill Gates, despite both being equal before the law and having one vote each.

Moreover, different groups and fractions of the population may have conflicting views regarding social organisation, and therefore develop opposing political objectives and strategies. It has, I think, not occurred in history that a single group has determined the political question (the question of institution, organisation, direction and administration of social life) all by itself. Politics is a contingent, antagonistic process which involves, to a varying extent, degree and role, the entire population. In promoting a political view, different social forces seek to negotiate and forge alliances with other forces, to secure the support or the tolerance of others, and confront and repress others still. In modern societies, most of this work happens in and through the state. The modern state claims to be an institutional entity situated outside and above the antagonisms of (civil) society, and to guarantee its peaceful reproduction in the face of tensions which threaten to tear it apart. The state digests political input from different fractions of the population, and on its basis organises official policies which are meant to represent the common good of the entire society. On this basis, the state becomes the terrain where political antagonism is played out and, with the same token, a most powerful political agency: the political views, strategies, projects and agendas of social forces can only become part of the fabric of social life inasmuch they are endorsed and promoted by the state; and the state is a key factor in (co-)determining the political views, strategies, and projects of social forces. Thus, the state claims the monopoly of legitimate politics.

Thus, the question of the population’s participation in politics is transformed into one about the capacity of different social forces to influence the state. The state here is seen not as an institutional system possessing power and acting according to the volition of its top custodians. On the contrary, it is conceptualised as a social relation: as a creation of social forces, a terrain where their antagonism is played out, and a key agency in social antagonism. The access of different social forces to the state is largely determined by its institutional layout and the ways in which it exercises power. Given that the state’s power and institutional design are largely provided by, and codified in, law, the study of law is a central, indispensable part of the study of the state. Again, law is not (just) the sum total of legal texts and institutions, but a social relation, a relation of power among different forces, mediated by the institutionality of the legal system. These acceptances regarding the nature of law and the state describe a ‘strategic-relational’ approach to the state and law as social phenomena. In a nutshell: society creates its state and law; and law and the state are crucial in making society.

In this manner, the innocent question of counterterrorism’s impact on the population’s ability to participate in politics has turned into one concerning the impact of homeland security on the institutional design of the state, the way in which it exercises power, and it relates to society ‘outside’ it – what I will be calling the ‘state-from’. This question includes, like a babushka doll, one concerning how homeland security affects law: its content and institutions, its production and implementation, its effects upon different sectors of the population and their capacity to access justice, and its gravitas as a mode of government – in short, the ‘law-form’.

The study of the law-form examines counterterrorism legislation, its production, implementation, the relative weight of law in state practice and the importance of the legal system among state institutions. The study of the state-from includes that of the law-form, and expands to address political discourse, the restructuring of state institutions and power modalities, and state-population relations.

As the study of homeland security’s impact on the state- and law-forms is guided by the question of popular political participation, and occurs under an understanding of the state and law as social-relational phenomena, it develops a unique, holistic approach to domestic counterterrorism.

Its holistic character derives from three interlinked features. The first one is the guiding question regarding the impact of homeland security on popular participation in politics. The question runs like a red thread across the different areas which comprise the study of the law- and state-forms, and provides this wide-ranging examination with conceptual unity – it permits a unified vista of the homeland security landscape.

The second feature is its strategic-relational approach to the phenomena it investigates. The conceptualisation of law and the state as social creations and agencies, ultimately pertaining to social dynamics, helps relate developments in law to those in the state (and vice versa), and to relate developments in both these areas to occurrences (actual, anticipated or designed) in the broader society ‘outside’ their institutional cluster. A new piece of legislation, for instance, is connected to the strategy of the state which produces and implements it. State strategy is, in turn, connected to relations between social forces (e.g. labour vs capital; men vs women), which it tries to maintain, adjust or alter.

Combined, these two features – the guiding question and the strategic-relational approach – provide a rich analytical tapestry, able to relate legal, state, and social dynamics to each other. Thus, the examination of a specific development, for instance, a new Bill, results in an account not only of its content, but also of its implications for the legal system; its indications about, and its impact on, the state; and the interests it promotes (and undermines) in the realm of social dynamics. In doing so, it goes some way to address the ‘why?’ question – why did counterterrorism take this form after 9/11? – and also the ‘so what’ question – why should we care about it?

The third feature which permits this study an holistic scope is the conceptualisation of politics not as a determined, institutionally located activity, but as a broad social work pertaining to the institution, organisation, direction and administration of social life. The study of homeland security transverses state institutions and power, law, citizenship and social dynamics. To do so it draws from state-theory, political philosophy, jurisprudence and legal studies, political economy, discourse analysis, sociology, and security studies. This wide range of influences derives from seeing homeland security as a political phenomenon, and understanding politics in a broad, inclusive sense. Thus, rather than trans-disciplinary, this study can instead by seen as ‘pre-disciplinary’: by adopting an amplified understanding of politics, it overcomes the separation of the study of the social into distinct (often entrenched) ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of abbreviations
• 1 Introduction: homeland security, the US polity, and social dynamics
• 2 Politics, the state and law: a strategic-relational approach
• 3 11 September 2001: a social, political and legal charting
• 4 Heralding a new politics: the war on terror discourse
• 5 A blueprint of power: legislating counterterrorism
• 6 Counterterrorism legislation and the law-form
• 7 The Act and the state: implementation, friction, resistance
• 8 Department of homeland security and police restructuring
• 9 Total intelligence, intelligence-led policing, ‘totalitarian’ state?
• 10 The political significance of intelligence: government by experts
• 11 Citizen corps: homeland security citizenship
• 12 Resistance to homeland security
• 13 Repression
• 14 Homeland security: capital in full armour
• Bibliography
• Index