In the past several years, a new category of human being has been introduced into the public discourse: The Terrorist. Of course, people have been called terrorists before, but with the beginning of the
The Terrorist is different from, for example, the criminal. We think of a criminal as a person who was born as an ordinary human being, but has somehow “gone wrong.” The criminal has committed a criminal act, but may still be capable of penitence, which is why we put criminals in penitentiaries. But The Terrorist has not “gone wrong.” As President Bush has so often told us, The Terrorist is evil. The word “evil” is not a legal term; no court of law can convict a person of being “evil.” Evil is a religious concept. The evil person is not someone who has taken the wrong path, but rather someone who has come into this world for the very purpose of causing pain and suffering. As you can see by putting a “d” at the beginning of the word, the evil person is here to carry out the project of the Enemy of God. Repentance is out of the question: the misery that the evil person has brought about is exactly what was intended.
In the new terrorist discourse, the issue, when a particular case is being discussed, is not what the person did, but what the person is. When the case of John Walker Lind, the young man from California who was captured in Afghanistan, was being discussed in the newspapers, the question was framed not in terms of what crimes, if any, he actually may have committed, but rather what category he should be placed into: was he a terrorist, or was he an ordinary American boy gone wrong? If the former, he should be tried (the papers said) by a military tribunal; if the latter, he should get an ordinary jury trial (as it happened, the latter position prevailed). The terrorism discourse is based on a form of essentialism: once a person is categorized as a terrorist-in-essence, that person can be placed in a separate legal category. The important thing is that this determination of what the person is takes place before a legal determination is made (by trial) as to what the person did.
I wrote above that no court of law can make a judgment of what a person is (e.g., essentially good or evil), but there is another kind of court that has claimed to make such judgments. That is the court used in witch trials, where the evidence as to what the accused person did is only relevant insofar as it indicates whether that person is or is not a witch. Once the person is judged to be a witch, then what he or she did is no longer relevant. The logic of the present terrorist discourse is witch-hunt logic.
In political cartoons and commentaries, The Terrorist has most often been depicted as a gutter rat. Not the white rat or the brown country rat, but the plague rat, the one that is never displayed in zoos and that no one (except witches) ever keeps as pets. The plague rat, like the cockroach, exists in popular imagination (though animal rights activists may disagree) as an animal to be killed on sight, and exterminated if possible. And “extermination,” a word that, outside of Nazi discourse, has not often been used in regard to a category of human beings, is precisely the word being used in War-on-Terrorism propaganda today.
This characterization of The Terrorist revives the emotional content of racism without being, strictly speaking, racist. Anti-Terrorist propaganda cannot be racist because The Terrorist, while a category, is not a race. The people the
THE TERRORIST as a New Legal Category
But if they don’t have the rights of POWs, they don’t have the rights of criminal suspects either. They are placed in the new legal category established by President Bush’s Executive Order of
Among these are the right to be informed of what you are being detained for so you can contest this in court, the right of Habeas Corpus (under which if the prosecutor is unable within a reasonable period to show evidence you have committed a crime, you must be released), the right to confront and question witnesses (for government witnesses may be spies, and if they show their faces in court they can’t be used again), the right to see the evidence being used against you (some of it may be state secrets), the right to consult a lawyer, the right to trial by a jury of your peers, the right to appeal to a higher court, the right to an open trial, and (as all these rights are taken away before any judicial determination of guilt or innocence) the right to be presumed innocent until proven guilty. This last is especially mind-boggling. The prisoners are trapped in a kind of backward tautology: they are placed in the category of “terrorist” (or as
Thus these prisoners are placed in an impossible position, much like that of Joseph K in Kafka’s The Trial: “You are accused of being guilty. We are not in a position to tell you, guilty of what, nor who your accusers are, nor when, if ever, your trial will take place. Defend yourself as best you can.”
When a human rights lawyer appealed to a judge to issue a writ of habeas corpus for the Guantanamo prisoners, the judge refused on the ground that U.S. criminal law has no jurisdiction in Cuba.* With this we could understand why Guantanamo was selected for the concentration camp.
Critics of the military tribunals are concerned that, even though the executive order exempts U.S. citizens (Section 2, a) once it becomes established that foreign “terrorists” can be tried in these star chamber courts (or imprisoned indefinitely with no trial at all), soon it will be possible to treat U.S. citizens in the same way. And in fact this has already begun, in the cases of Yasser Hamdi and Jose Padilla. This is extremely important, but there is a larger question: what gives the
*This judgment is being appealed to the Supreme Court but, as most observers have noted, the Supreme Court has rarely taken a strong stand against the Executive Branch in time of war.