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Indiana Journal of Global Legal Studies Vol. 26 #1 (Winter 2019) © Indiana University Maurer School of Law

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Law, Politics, and Populism in the U.S.A. P.A.T.R.I.O.T. Act

JOTHIE RAJAH

ABSTRACT

The U.S.A. P.A.T.R.I.O.T. Act is legislation that simultaneously brings into being very particular notions of the American ‘national’ and, as its counterpart, a post-9/11 “global.” Through a study of the Patriot Act, my paper unpacks the co-constitutions of national/global and a related series of binaries: domestic/foreign; patriot/terrorist; us/them; and innocence/evil. By exploring the structuring logics and language of these binaries in the Act, my paper scrutinizes the global role of U.S. legislative text in our world: a world in which “a global society has come into being but possesses as yet, no institutions proper to its name.”1 In the context of our global perpetual war, I challenge our understandings of the categories structuring the Patriot Act to point to the specific ways in which law and war are co-constituted in our present.

I. INTRODUCTION

The Patriot Act2 is legislation that simultaneously brings into being very particular notions of the American ‘national’ and, as its counterpart, a post-9/11 “global.” The processes, actors, and institutions informing the making of this legislation conform to received notions of law in relation to nation-state sovereignty.3 Significantly, however, this

1. FAISAL DEVJI, THE TERRORIST IN SEARCH OF HUMANITY 8 (Tarak Barkawi, Jame Mayall & Brendan Simms eds., 2008). 2. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of U.S.C.) [hereinafter Patriot Act]. 3. For a discussion of the history of and modern conceptions of nation-states, see Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311, 411–89 (2002). Berman usefully defines the historical Enlightenment era conception of nation-states as “culturally cohesive communities with common interests and bonds best known as nations.” Id. at 456. Nation-states were political institutions that “used their administrative power to encourage social cohesion and identification with the state

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national law has a transnational second life. Thirteen days before Congress passed the Patriot Act, “while the wreckage of the Twin Towers still smoldered a short distance away,”4 the U.N. Security Council passed Resolution 1373.5 Resolution 1373 substantively duplicates the content of the then draft Patriot Act.

Under Resolution 1373, all 192 member states of the United Nations were required to make terrorism a serious crime in domestic law, along with conspiracy to commit terrorism, aiding and abetting terrorism, providing material support for terrorism, inciting terrorism, and other ancillary offences.6

The “two worrisome gaps” of Resolution 1373, “the lack of any definition of terrorism and the lack of any mandatory concurrent compliance with human rights norms in carrying out the fight against terrorism,”7 have become transnational and “persistent legacies of 9/11.”8 These worrisome gaps are, of course, also features of the Patriot Act.9 through the enforcement of uniform languages, the establishment of compulsory education, and the institution of rhetorical and symbolic efforts to eras' local differences and imagine a coherent community.” Id. at 457. The nation-state fostered nationalism, defined “as a political movement seeking to unite people to a sovereign state based on a common ancestry or culture.” Id. While nation-states gradually came to be known as distinct geopolitical entities, Berman usefully notes that “the idea of nation-states existing within fixed territorial boundaries is a relatively recent phenomenon, and . . . that the link between nation and state is contingent and often tenuous.” Id. at 459. 4. Kim Lane Scheppele, Other People’s Patriot Acts: Europe’s Response to September 11, 50 LOY L. REV. 89, 91 (2004) [hereinafter Other People’s Patriot Acts]. 5. S.C. Res. 1373 (Sept. 28, 2001). 6. Kim Lane Scheppele, From a War on Terrorism to Global Security Law, INST. FOR ADVANCED STUDY (2013), https://www.ias.edu/ideas/2013/scheppele-terrorism [hereinafter From a War on Terrorism]. 7. Scheppele, supra note 4, at 92. 8. Scheppele, supra note 6. 9. The Patriot Act offers the following definition of “domestic terrorism”: “[A]cts dangerous to human life that are a violation of the criminal laws of the United States or of any State [that] appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.” Patriot Act, Pub. L. No. 107-56, § 802(a)(5) 115 Stat. 272, 375-76 (2001) (codified as amended in scattered sections of U.S.C.). It eschews defining global terrorism. For a further discussion of the difficulties of defining terrorism in the aftermath of Security Resolution 1373, see generally Sudha Setty, What’s in a Name? How Nations Define Terrorism Ten Years After 9/11, 33 U. PA. J. INT’L L. 1 (2011) (addressing the lack of a globally accepted definition of terrorism). Some argue that the lack of a concrete definition for terrorism encourages states to commit

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How might national legislation, populism, and the domain of the global intersect? Our symposium grapples with the contemporary politics of law and ways in which populism inflects law’s politics to de- stabilize our understanding of globalization. The question of populism in relation to the category “global,” as plays out in the Patriot Act, might usefully be entered by drawing broadly on Laclau’s important work: On Populist Reason.10 Laclau’s complex argument in this text has been usefully summarized by Benjamin Arditi.11 I draw on that summary heavily here. For Laclau, “when a series of social demands cannot be absorbed differentially by institutional channels,”12 these unsatisfied demands enter into a relationship of solidarity, or equivalence with one another, and crystallize around common symbols. These common symbols can be appropriated by leaders who then interpellate the frustrated masses, articulating a process of popular identification that constructs “the people” as a collective actor so as to confront the existing regime with the purpose of demanding regime change. For Laclau, “politics-as-populism divide[s] the social scene into two camps and produces a[n] . . . antagonistic relation among them.”13

In the process, the binary national/global is simultaneously and paradoxically reified yet blurred; a national law invoking patriotism casts its jurisdictional and ideological net over the world, constructing a global sphere delineated by the friend/enemy14 distinction. Significantly, these dynamics of law and populism together express forms of law and politics inextricably tied to the nation-state. What happens when law and politics grounded in the nation-state (exemplified by the Patriot Act) confronts a politics situated, not in the territory and institutions of “nation,” but in an amorphous, diffuse “global?”

abuses under the pretext of combatting terrorism. See Martin Scheinin (Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism), Rep. of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism [hereinafter U.N. Promotion and Protection of Human Rights], ¶¶ 26-27, U.N. Doc. E/CN.4/2006/98 (Sept. 28, 2005). 10. ERNESTO LACLAU, ON POPULIST REASON (2005). 11. Benjamin Arditi, Populism is Hegemony is Politics? On Ernesto Laclau’s On Populist Reason, 17 CONSTELLATIONS 488 (2010). 12. Id. at 489. 13. Id. 14. For a discussion of the friend/enemy distinction, see generally CARL SCHMITT, THE CONCEPT OF THE POLITICAL (George Schwab trans., 1996) (1932). Schmitt argues that absolute peace and absolute war exist on two ends of a spectrum, and intensity of political oppositions causing friend/enemy distinctions intensify as one moves away from peace. Id. at 32–49.

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In Section IV below, I discuss the role of spectacle15 in relation to populism in the Patriot Act. For now, however, I draw on Laclau to argue that the Patriot Act illustrates ways in which populist reason’s oppositional dynamic of “the people” versus “the elite” has been captured and re-framed into an oppositional dynamic on another scale altogether. Constructing the American people and state into a collective actor, an antagonistic relationship has been produced between America and a diffuse global enemy. Embracing terrorists, foreign governments, the U.N., and International Law, this antagonistic relationship interpellates “the American people” as “patriots” pitted against a capacious, global “other”.

II. QUESTIONING THE GLOBAL

Given the cause-effect narrative through which 9/11 is explained as the precipitating cause for the Patriot Act,16 it is helpful to consider the category “global” through a specific engagement with Al-Qaeda’s constructions of “global.” In The Terrorist in Search of Humanity, Faisal Devji analyses the discourse of Al-Qaeda to argue that “[a] global society has come into being, but possesses as yet no political institutions proper to its name, . . . new forms of militancy, like that of Al-Qaeda, achieve meaning in this institutional vacuum, while representing in their own way the search for global politics.”17 Contrasting the verticality of “the kind of indoctrination that requires a hierarchically controlled environment to function,”18 Devji draws attention to the horizontality of Al-Qaeda’s politics, “connecting people separated by history, geography and language through media in the way that fashion or advertising does.”19 Devji’s opening discussion of this kind of horizontality is striking and unexpected. He describes portraits taken in secret photography studios when Afghanistan was under Taliban rule:

15. See generally GUY DEBORD, THE SOCIETY OF THE SPECTACLE (Black & Red trans., 1977) (1967) (developing the concept of the spectacle as the inverted image of society in which relations between commodities overshadow relations between people). 16. See. Robert O’Harrow, Jr., Six Weeks in Autumn, WASH. POST, (Oct. 27, 2002), http://www.washingtonpost.com/wp- dyn/content/article/2006/05/09/AR2006050900961.html (narrating the intense political pressures in the aftermath of 9/11); see also 147 CONG. REC. 10990, 11020-23 (2001) (statement of Sen. Feingold) (noting that Congress had been under “relentless” pressure from the administration to pass the Patriot Act legislation “without deliberation [or] debate”). 17. DEVJI, supra note 1, at 8. 18. Id. at x. 19. Id. at ix-x.

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[O]rdinary Afghans and even Taliban fighters posing against elaborate backdrops. Dressed in street clothes and equipped with guns of various sorts, men and boys are depicted . . . standing or sitting before Swiss chalets and other pastoral settings, both European and Asian, with bunches of plastic flowers making up the rest of the décor . . . . [T]hese portraits are not in the least idiosyncratic, illustrating despite their display of firearms a set of standard poses and generic backgrounds familiar across wide swathes of South and Central Asia . . . examples of kitsch as a global form that belongs to no particular religion. There is an intimate relationship between the Taliban fighter photographed before a Swiss chalet and pictures, popular since the nineteenth century, of Jesus knocking at the door of a similar building.20

Characterizing Al-Qaeda as, in part, a global franchise21 with “a great many disconnected persons and a small number of media personalities,”22 Devji argues that Al-Qaeda’s fighters “jettison Islamic law itself as a political model to make an individual duty out of it . . . . Without the grounding provided by [the nation] state, they begin to fragment, and one is left with lines of thinking rather than a system of thought.”23 A crucial pillar of these lines of thinking is Al-Qaeda’s positioning of itself as “global” and “humanitarian.” Devji writes: “[A]longside the environmentalists or pacifists . . . the men and women inspired by Al-Qaeda’s militancy consider Muslim suffering to be a “humanitarian” cause that, like climate change or nuclear proliferation, must be addressed globally.”24 For these new militants, what is at stake is “existence as such, including that of humanity as a whole, and so cannot be partitioned between friend and enemy, or the material and the spiritual . . . like other global movements dedicated to the environment or peace [the new militancy] take[s] the globe and all who inhabit it for sites of action.”25

It is this very fragmentation, he argues, the strategic deployment of global media, and the institutional vacuum marking global politics that combine to make Al-Qaeda simultaneously global and elusive. For Al-

20. Id. at viii-ix. 21. See id. at 3. 22. Id. at 2. 23. Id. at 3–4. 24. Id. at 6. 25. Id. at 5-6.

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Qaeda then, the register of the global is expressed through a global social, a global media, invocations of a global humanitarianism, and a global politics “[b]ereft of institutional features.”26 In summary, Devji highlights how, in the mix that marks contemporary forms of politics, law has been untethered from nation-states and from institutions conventionally recognized as “legal.” Instead, media connects individuals across disparate spaces, shaping individuals’ sense of values, belonging, and agency.

III. THE POLITICS OF LAW’S LANGUAGE

Before juxtaposing this horizontal and fragmentary understanding of “global” with a further analysis of “global” in the Patriot Act, it is worth taking a moment to address the value of close study of legal text. In his highly influential book, The Legal Imagination,27 James Boyd White alerts us to the politics of law and knowledge inherent to law’s primary vehicle: language. He writes:

[T]hink about . . . the limits imposed by legal and institutional languages upon the minds that use them: the exclusions, the compelled silences, the rigidities of the discourse . . . . Perhaps the most frustrating restrictions are those of the legal rule, a form of language that seems to require its user to speak as though all of life could be reduced to a string of binary labels, which will be found either “to apply” to the world or not, in a process as to which the rule itself is largely silent.28

Not only do legal and institutional languages impose limits, compel silences, and construct reductive binaries, statutory text is also, crucially, a way of organizing future experience.29 In 2018, seventeen years after the enactment of the Patriot Act, we are in a position to attest to the future-making effects of the Act. In keeping with the model for emergency legislation, the Act features built-in expiration dates, known as sunset clauses.30 However, the sunset clauses of the Patriot

26. Id. at 2. 27. JAMES BOYD WHITE, THE LEGAL IMAGINATION: ABRIDGED EDITION (1985). 28. Id. at 207. 29. See JAMES B. WHITE, THE LEGAL IMAGINATION 197 (1973). 30. For a brief history of the use of sunset clauses in American legislation, see John E. Finn, Sunset Clauses and Democratic Deliberation: Assessing the Significance of Sunset Provisions in Antiterrorism Legislation, 48 Colum. J. Transnat’l L. 442, 445–50 (2010). In

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Act sit within the broader context of the continuing state of emergency.31 The emergency has been renewed so routinely that it is now in its seventeenth year.32 Like the ongoing state of emergency, the sunset clauses have, for the most part, been extended.33 And with the

the Patriot Act, sunset clauses apply to some, but not all sections of the Act. For the general sunset provision, see Patriot Act, Pub. L. No. 107-56, §224, 115 Stat. 272, 295 (2001) (codified as amended in scattered sections of U.S.C.) (“IN GENERAL . . . . [T]his title and the amendments made by this title . . . shall cease to have effect on December 31, 2005 . . . [except] [w]ith respect to any particular foreign intelligence investigation that began before the date on which the provisions . . . cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue to in effect.”). 31. The state of emergency that led to the Patriot Act was declared by former President George W. Bush in Proclamation 7463. See Proclamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14, 2001) (“Declaration of National Emergency by Reason of Certain Terrorist Attacks”). States of emergency are nothing new for the United States. See Christopher Ingraham, The United States is in a State of Emergency—30 of Them, In Fact, WASH. POST (Nov. 19, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/11/19/the- united-states-is-in-a-state-of-emergency-30-of-them-in-fact/?utm_term=.9a66f3bc5dbe (noting that “the United States has been in an uninterrupted state of national emergency since 1979”); see also Ryan Struyk, Here are the 28 Active National Emergencies. Trump Won’t be Adding Opioid Crisis to the List, CNN Politics (Aug. 15, 2017, 12:27 PM), https://www.cnn.com/2017/08/12/politics/national-emergencies-trump-opioid/index.html (noting that “[s]tates of emergency are nothing new for the United States . . . there’s been at least one national emergency for nearly four decades straight”). 32. See generally George Korte, A Permanent Emergency: Trump Becomes Third President to Renew Extraordinary Post-9/11 Powers, USA Today (Sept. 14, 2017, 12:28 PM), https://www.usatoday.com/story/news/politics/2017/09/14/permanent-emergency- trump-becomes-third-president-renew-extraordinary-post-9-11-powers/661966001/ (noting that Trump was the third president to extend Proclamation 7463, and that it was over seventeen years old). 33. To briefly outline what exactly in the Patriot Act has become permanent and what is still subject to sunset: 1. Section 201: Permanent as of 2006 Reauthorizations 2. Section 202: Permanent as of 2006 Reauthorizations 3. Section 203(b): Permanent as of 2006 Reauthorizations 4. Section 203(d): Permanent as of 2006 Reauthorizations 5. Section 206: Sunset of December 15, 2019 due to USA FREEDOM Act 6. Section 207: Permanent as of 2006 Reauthorizations 7. Section 212: Permanent as of 2006 Reauthorizations 8. Section 213: Increased civil rights protection in 2006 Authorization. 9. Section 214: Permanent as of 2006 Reauthorizations 10. Section 215: Sunset of December 15, 2019 due to USA FREEDOM Act 11. Section 217: Permanent as of 2006 Reauthorizations 12. Section 218: Permanent as of 2006 Reauthorizations 13. Section 220: Permanent as of 2006 Reauthorizations 14. Lone-wolf Amendments: Sunset of December 15, 2019 due to USA FREEDOM Act

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May 2015 passing of the U.S.A. F.R.E.E.D.O.M. Act,34 many of the (ostensibly) temporary provisions of the Patriot Act have become permanent.35 This temporality of seeming contingency, contradicted by a materiality of persistence, illustrates that even though the Patriot Act takes on the guise of emergency law, it participates in entrenching and expanding authoritarian legality.

Robert Diab helpfully distinguishes liberal legality, emergency legality, and authoritarian legality to identify the defining characteristics of authoritarian legalism: “(i) the suspension of absolute or non-derogable rights; (ii) the legislative entrenchment of greater powers of secrecy and surveillance; (iii) judicial deference to the executive; and (iv) the state’s reluctance to remedy past violations of core human rights.”36 Given that the Patriot Act has engendered “widespread loss of civil rights . . . and related changes in domestic security policies and practices”37 and has played a key role in eroding rights and legal process worldwide,38 there can be no doubt that the Patriot Act has been a text central to global dissemination of an authoritarian politics of law.

IV. NATIONAL LAW, GLOBAL JURISDICTION

The conjoining of “national” and “global” in the Patriot Act is evident in the Act’s statement of purpose: “To deter and punish terrorist acts in the United States and around the world.”39 In this statement of 34. The full name of the USA FREEDOM Act is Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, Pub. L. No. 114-23, § 1, 129 Stat. 268, 268 (2015). 35. Id. § 705 (extending the sunset on three provisions of the 2006 reauthorizations to December 15, 2019: Section 206’s roving wiretaps, Section 215’s Business Records’ Requests, and the “lone wolf” amendments). 36. ROBERT DIAB, THE HARBINGER THEORY: HOW THE POST-9/11 EMERGENCY BECAME PERMANENT AND THE CASE FOR REFORM 23 (2015). 37. Alison Brysk, Human Rights and National Insecurity, in NATIONAL INSECURITY AND HUMAN RIGHTS: DEMOCRACIES DEBATE COUNTERTERRORISM 1, 2 (Alison Brysk & Gershon Shafir eds., 2007). As noted above in Part III, sections of the Patriot Act that expired in May 2015 have been restored by the 2015 USA Freedom Act. 38. See generally Scheppele, supra note 4, at 90 (noting that “America’s European allies . . . have by and large adopted a posture supportive and complementary to that of the United States in the ongoing fight against terrorism”); see also generally Scheppele, supra note 6 (discussing the United States’ aggressive development of global security law in the aftermath of 9/11); see also generally Marieke de Goede & Gavin Sullivan, The Politics of Security Lists, 34 ENV’T & PLANNING D: SOC’Y & SPACE 67 (2011) (discussing the re- emergence and proliferation of lists as technologies of security and regulation in the aftermath of 9/11). 39. Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of U.S.C.)(emphasis added).

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purpose, the Act flags the workings of one of law’s core analytic categories: jurisdiction. Recent scholarship on jurisdiction breathes new life into Emile Benveniste’s insight that, etymologically, juris diction combines law and speech.40 Drawing on this insight, and borrowing from Justin B. Richland’s formulation that, as law’s speech, jurisdiction “is simultaneously founded and enacted through language both spectacular . . . and mundane;”41 this section of my paper analyzes the Patriot Act to show how a post-9/11 account of law deploys not only spectacular and mundane language but also the logics and dynamics of spectacle.

Guy DeBord characterizes spectacle as:

[T]he omnipresent celebration of a choice already made in the sphere of production, and the consummate result of that choice. In form as in content the spectacle serves as total justification for the conditions and aims of the existing system. It further ensures the permanent presence of that justification, for it governs almost all time spent outside the production process itself.42

In theorizing spectacle, DeBord was describing “a media and consumer society organized around the production and consumption of images, commodities, and staged events.”43 Spectacle tends to work by “distancing, distracting, and disengaging,”44 transforming citizens into passive consumer-audiences schooled, by the role of audience, into a “larger []political helplessness.”45

Keally McBride analyses the particular potency attaching to

40. EMILE BENVENISTE, INDO-EUROPEAN LANGUAGE AND SOCIETY 391–92 (Elizabeth Palmer, trans., Faber and Faber 1973) (1969); see also SHAUNNAGH DORSETT & SHAUN MCVEIGH, JURISDICTION 5 (2012) (“Jurisdictional thinking gives us a distinct way of representing authority because it gives us the voice or idiom of law. This is the ‘diction’ part of the term ‘jurisdiction’. When we think about an idiom we are thinking about the language and style of talking about law. Talk of jurisdiction does not simply describe law from the outside—it gives us the ways and means of talking about and practicing law.”); see also Justin B. Richland, Jurisdiction: Grounding Law in Language, 42 ANN. REV. OF ANTHROPOLOGY 209, 209 (2013) (arguing that “law is simultaneously founded and enacted through language both spectacular (such as courtroom arguments or in the preambles of constitutions) and mundane (such as in legal aid intake exchanges, or in the forms of bureaucratic records)”). 41. Richland, supra note 39, at 209. 42. DEBORD, supra note 15, at ¶ 6. 43. DOUGLAS KELLNER, MEDIA SPECTACLE 2 (2003). 44. ROGER STAHL, MILITAINMENT INC. 3 (2010). 45. Michael Rogin, “Make My Day!”: Spectacle as Amnesia in Imperial Politics, 29 REPRESENTATIONS 99, 103 (1990).

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political spectacle after 9/11 by noting that the relationship between consumer capitalism and spectacle has been entrenched “for more than one hundred years.”46 Given that “the terrorist attacks in September 2001 were designed to be a spectacular strike at the symbols of American power . . . [p]roviding security in this situation demands a reassertion of normalcy and predictability.”47 Assertions of normalcy and predictability, McBride highlights, are delivered through spectacle that is “recognizable and routine.”48 Enacting legislation through recognizable and routine processes, even in the face of exceptional circumstances, surely operates as just such a palliative spectacle of normalcy.

In addition to supplying the recognizable and routine, when legislation moves through the House and the Senate, liberal legality’s dynamics of scrutiny, contestation, and transparency are assumed to be at work.49 In turn, the performance of liberal legality feeds into a narrative of liberal legal legitimation that has become part of the story of the Act. For example, the 2004 Department of Justice Report on the Patriot Act characterizes the Act as having been “overwhelmingly passed” by Congress.50 “Overwhelmingly passed” becomes a shorthand assertion for the values and dynamics of representative democracy: an assertion contradicted by the repeated echoing of state justifications that characterized the muted debates in both the House and the Senate.51 The narrative of liberal legal legitimation also disregards how the Patriot Act’s statement of purpose in naming and conjoining just two territories–the United States and an undifferentiated rest of the world–functions to undermine liberal legality by legitimizing U.S. imperialism.

The planetary jurisdiction the United States awards itself in the Patriot Act would, in 2004, be affirmed by the 9/11 Commission Report,

46. See Keally McBride, Riding Herd on the New World Order: Spectacular Adventuring and U.S. Imperialism, in TARZAN WAS AN ECO-TOURIST AND OTHER TALES IN THE ANTHROPOLOGY OF ADVENTURE 257, 259 (Luis A. Vivanco & Robert J. Gordon eds., 2006). 47. Id. at 259. 48. Id. 49. Robert Diab succinctly describes liberal legality as “a legal order that values non- derogable or core human rights, individual privacy, and limited government.” DIAB, supra note 35, at 10. He also usefully offers an expanded discussion of liberal legality. Id. at 24- 28. 50. U.S. DEP’T OF JUSTICE, REPORT FROM THE FIELD: THE USA PATRIOT ACT AT WORK 1 (Jul. 2004), available at https://www.justice.gov/archive/olp/pdf/patriot_report_from_the_ field0704.pdf. 51. In both the House and the Senate, debate was minimal and muted, as was media critique, and the Patriot Act was rapidly passed.

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which asserts, “the American homeland is the planet.”52 The planet is not “homeland” in the sense of repairing global warming or addressing human rights abuses.53 Instead, inflected by the explicitly securitized post-9/11 meaning associated with the November 2002 creation of the Department of Homeland Security,54 U.S. military violence towards other people in other places becomes part of the story of post-9/11 law, authorizing the “boundless” and “defensive” jurisdiction of the counterterror state.55

Like a variation on the theme of national/global, juxtapositions of domestic/foreign also shape and inform the Act in that both the text of the Act56 and text about the Act57 explain the Act as a necessary response to 9/11. Passed on the twenty-fourth of October, 2001,58 a breathless forty-five days after the events of 9/11, the Act followed rapidly on the heels of America commencing military action in Afghanistan. The “foreign attack on domestic soil” dynamics of 9/11 have thus been mirrored by an American attack on foreign soil.

V. SPECTACLE AND POPULISM

Language as spectacle, expressing “choice already made in the sphere of production,”59 is evident in the Act’s two official names: the full name, “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of

52. NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 362 (2004). 53. See DEVJI, supra note 1, at viii-x. Devji highlights that Al-Qaeda militants “speak from within the world of their enemies . . . employ[ing] the same categories as they do, in particular those of humanism, humanitarianism, and human rights. . . . [M]ilitant rhetoric is full of clichés about the threats of nuclear apocalypse or environmental collapse posed by the arrogance and avarice of states and corporations . . . .” Id. at x. 54. For a collection of the key documents that led to the creation of the Department of Homeland Security, see Dep’t of Homeland Sec., Creation of the Department of Homeland Security, DEP’T OF HOMELAND SEC., (Sept. 24, 2015), https://www.dhs.gov/creation- department-homeland-security. 55. JOSEPH MASCO, THE THEATER OF OPERATIONS: NATIONAL SECURITY AFFECT FROM THE COLD WAR TO THE WAR ON TERROR 1 (2014). 56. See Patriot Act, Pub. L. No. 107-56, § 102, 115 Stat. 272, 276 (2001) (codified as amended in scattered sections of U.S.C.). 57. U.S. DEP’T OF JUSTICE, REPORT FROM THE FIELD: THE USA PATRIOT ACT AT WORK 1 (Jul. 2004), available at https://www.justice.gov/archive/olp/pdf/patriot_report_from_the_ field0704.pdf. 58. See Patriot Act, supra note 55. 59. DeBord, supra note 15, at 8 ¶ 6.

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2001,” and the official alternative name, “USA PATRIOT ACT”60 (The de facto name, Patriot Act, is the name I use in this paper). The neologism “bacronym” was coined to describe the inversion of an acronym,61 and in the bacronym-name of this law, the deliberate crafting and clever wordplay associated with branding and marketing seems evident.62 In abstracting a recognizable feature of consumer culture–branding–and deploying branding in the “conservative, frozen genre []” of legislation,63 the Patriot Act establishes “indexical resonances”64 between law and consumer culture.

In these resonances, the logic of advertising can be seen to be at work. Just as “in advertising the signification of the image is undoubtedly intentional”65 such that “the viewer . . . receives at one and the same time the perceptual message . . . and the cultural message,”66 the same is true with the name “Patriot Act;” the public is presented with the ideologically-freighted cultural injunction to be patriotic.

“Patriot” is not half of a conventional binary in the way, for example, that black/white or man/woman pair into established binary oppositions. However, like a conventional binary, “patriot”/“non-patriot” is a pairing imbued with value hierarchy. If “patriotism” is the (desirable, exalted) “quality of being patriotic; love of or devotion to one’s country,”67 then “non-patriot” is fraught with the (undesirable, denigrated) qualities of lack–not being devoted to, and not vigorously supporting one’s country. In public discourse, patriotism becomes especially valorized in times of war. And it is, of course, the so-called War on Terror that explicitly contextualizes the Patriot Act.

The tenor of “patriot,” so deeply associated with war’s binary of

60. See Patriot Act, supra note 55, § 1(a) (stating, with no irony, “SHORT TITLE. – This Act may be cited as the “Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.”). 61. The neologism “bacronym” was coined by Meredith G. Williams in 1983 to describe the inversion of an acronym. With a bacronym, “words are chosen to fit the letters.” Bob Levey, When You Can’t Decide, You Just Pick Them All, WASH. POST (Nov. 8, 1982), https://www.washingtonpost.com/archive/local/1983/11/08/when-you-cant-decide-you-just- pick-them-all/fbd4bf9c-b383-4e55-9bd7-508cb9f69f1b/?utm_term=.a03f8f63eb6d. 62. That is, in contrast to the not uncommon practice of citing to legislation by an abbreviation or shorthand. 63. Vijay K. Bhatia et al., Legal Discourse: Opportunities and Threats for Corpus Linguistics, in DISCOURSE IN THE PROFESSIONS: PERSPECTIVES FROM CORPUS LINGUISTICS 203, 206 (Ulla Connor & Thomas A. Upton eds., 2004). 64. Charles L. Briggs & Richard Bauman, Genre, Intertextuality, and Social Power, 2 J. LINGUISTIC ANTHROPOLOGY 131, 141 (1992). 65. ROLAND BARTHES, Rhetoric of the Image, in IMAGE-MUSIC-TEXT, 32, 33 (Stephen Heath trans., 1977). 66. Id. at 36. 67. OXFORD ENGLISH DICTIONARY (3d ed. 2018).

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friend/enemy,68 interpellates citizen-consumers into the role of a particular kind of subject: the loyal, unquestioningly obedient subject, prepared to make patriotism’s ultimate sacrifice of dying for one’s country. Law as commodity, in turn, shapes the citizen into commodity– a body prepared to fight and die for the country. In its text, context, and broader arena of the War on Terror, the Patriot Act brings into being a new binary: patriot/terrorist. The Oxford English Dictionary (OED) defines patriotism as the “quality of being patriotic; devotion to and vigorous support for one's country.”69 Tellingly, the OED’s exemplar of patriotism is “a highly decorated officer of unquestionable integrity and patriotism.”70 This highly decorated officer implicitly reproduces “The old Lie”71 that to die as a citizen-soldier is patriotism’s most exalted expression. To love one’s country differently, for example, as a critically engaged scholar or dissident,72 or to experience shared humanity as the locus of a border-transcending humanist citizenship,73 these non- binaried expressions of patriotism lack the archetypal resonance conveyed by the OED’s top “example sentence.” The sacralizing effect of devotion and the visceral quality of vigorous support are assigned to an account of patriotism that presumes–and implicitly celebrates–the violence of war in a world shaped by patriotic nationalism and exclusionary sovereign territories.

The Patriot Act’s conjoining of a bordered, nationalist patriotism and an unbounded, planetary jurisdiction makes sense through the lens of Joseph Masco’s analysis of “how the affective politics of the Cold War nuclear state both enabled, and–after 2001–were transformed into those of the counterterror state.”74

By tracing cultural infrastructure–state discourse, entertainment and documentary films, the Cold War civil defense project–Masco shows how, through the decades of the Cold War, the United States

68. See SCHMITT, supra note 14 and accompanying text. 69. OXFORD ENGLISH DICTIONARY, supra note 67. 70. Id. 71. Wilfred Owen, Dulce et Decorum est, in THE POEMS OF WILFRED OWEN 24-25 (Jon Stallworthy ed., 2015) (“Dulce et decorum est pro patria mori.”). 72. See Ghassan Hage, Warring Societies (and Intellectuals), 1 TRANSFORMING CULTURES EJOURNAL 1 (2006), http://epress.lib.uts.edu.au/journals/index.php/TfC/article /view/202/181 (discussing tensions between “friends/enemies, position taking/acting, intellectual politician” in societies besieged by conflict). 73. See generally BONNIE HONIG, DEMOCRACY AND THE FOREIGNER 2, 73-74 (2003) (examining attitudes towards foreignness as a beneficial resource for communities that requires frequent renewal); see also generally ARIELLA AZOULAY, THE CIVIL CONTRACT OF PHOTOGRAPHY 187-89 (2008) (examining photography as an act that builds political agency and sense of community and nationhood during times of political turmoil). 74. MASCO, supra note 55, at 2.

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“transform[ed] ruination into a form of nation building.”75 As Masco highlights, ruination as nation-building flourished as a cultural project despite the United States having been the perpetrator rather than the victim of conventional and nuclear mass bombings in World War II.76

In the post-Cold War decade of the 1990s, Masco argues ruination as nation-building continued through Hollywood blockbusters77 depicting threats from outer space.78 He writes: “Post-Cold War films have no purpose other than patriotism and pleasure; they seek to reinstall American identity through aestheticized mass violence, suggesting that only threat and reactions to threat can create national community.”79

It was, of course, also in the post-Cold War moment of 1991 that the first Gulf War “made it abundantly clear that war has entered into the system of consumption.”80 Because of Reagan-era deregulation, journalism had been captured by corporate consolidation and profit- seeking logic: “As larger corporations absorbed more independent news outlets, televised discourse became beholden to ever vaster corporate entities. . . . This new concentrated model tended to cleave more to business prerogatives and less to the ideals of journalistic practice.”81 This political and economic landscape facilitated collaborations between the Pentagon and media that resulted in de-democratizing effects82 exemplified by “the careful choreographing and filtering of Desert Storm.”83 So careful was this choregraphing, and so asymmetrical was this war, that “precise programing” of the conflict became possible: “The executive openly scheduled the first bombings to commence . . . during evening prime time.”84 In this moment of war as “total television” in

75. Id. at 45. 76. See id. at 68. 77. In tracing the relationship between war and entertainment media, Roger Stahl notes the troubling fact that “blockbuster” originally referred to a large aerial bomb. See STAHL, supra note 44, at 4. It is interesting that just as it was the press that first used the term “blockbuster” to characterize a World War II bomb with hitherto unprecedented destructive capacity, so too it is the press that first used the term “militainment” in 2003 to characterize “entertainment with military themes in which the Department of Defense is celebrated.” Id. at 6; see also Why is it Called Blockbuster?, DICTIONARY.COM, https://www.dictionary.com/e/blockbuster/ (last visited Sep. 27, 2018) (tracing the origins of the word to a July 27, 1942 Bellingham Herald article with the headline “Those ‘Big, Beautiful’ Bombs Are Called ‘Block Busters’ By Germans”). 78. MASCO, supra note 55, at 69. 79. Id. at 70. 80. STAHL, supra note 44, at 20. 81. Id. at 23. 82. See id. at 24. 83. Id. at 32. 84. Id. at 33.

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which “the boundaries between military action and media event broke down in such a way that military planning could become a new form of media reality,”85 language as spectacle played a leading role too. Operation Desert Storm could so easily be the name of a Hollywood blockbuster. And a weapon named ‘Patriot’ facilitated “tales of righteous and true technology (Patriot missiles) squaring off in the skies against wicked and errant technology (Iraqi SCUD missiles).”86 Similarly, ten years later, the 2001 naming of the Patriot Act has facilitated tales of a strong and just America, protecting itself and the world by punishing and deterring terrorism.

Patriot missiles (1991) and the Patriot Act (2001) link across that decade in a manner consistent with the dynamics of spectacle. In the homogenized, corporatized media environment of 1991, the Patriot missile fascinated and enthralled viewers; distracting publics from how the loss of media diversity, and the Pentagon’s control of war reporting, had “disappeared the very oxygen of democracy.”87 In a parallel de- democratizing move, appending the name ‘Patriot’ to a law that has engendered “widespread loss of civil rights”88 distracts publics from the Act’s erosions of civil, political, and human rights. In another twist, away from received understandings of patriotism and from popular depictions of heroic post-9/11 patriotism, the wars in Iraq and Afghanistan are noteworthy for the degree to which non-citizen mercenaries have been deployed. “Since 2009, the ratio of contractors to troops in war zones has increased from 1 to1 to about 3 to1”.89 In Mateo Taussig-Rubio’s memorable formulation, in America’s current wars, sacrifice has been outsourced.90

VI. LAW’S UNREADABLE SPEECH.

Another way of understanding the strategic advantage of the spectacle of the Patriot Act’s name is to consider the body of the Act itself. In his highly influential book, The Cultural Study of Law, Paul Kahn encourages inquiry that offers “a thick description of the legal

85. Tom Engelhardt, The Gulf War as Total Television, THE NATION, May 11, 1992, https://www.highbeam.com/doc/1G1-12240665.html. 86. STAHL, supra note 44, at 28. 87. Id. at 24. 88. Brysk, supra note 37, at 2. 89. Sean McFate, America’s Addiction to Mercenaries, THE ATLANTIC (Aug. 12, 2016), https://www.theatlantic.com/international/archive/2016/08/iraq-afghanistan-contractor- pentagon-obama/495731/. 90. See Mateo Taussig-Rubbo, Outsourcing Sacrifice: The Labor of Private Military Contractors, 21 YALE J.L. & THE HUMAN. 101, 101 (2009).

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event.”91 When the legal event is legislation, the thick description necessarily dwells on the words that form the text of an Act.

As noted above, the Patriot Act was introduced to legislators and publics as law specifically crafted to meet the exigencies of 9/11.92 However, almost three-quarters of the body of the Patriot Act–67.8 percent to be precise–consists of amendments to prior legislation (Table 1).93 Almost a quarter of the Patriot Act–23.9 percent–amends Title 18 of the United States Code, Crimes and Criminal Procedure (Table 2). Amendments to Title 31 of the United State Code, Money and Finance, add up to a hefty 17.5 percent (Table 3). Amendments to the Immigration and Nationality Act and to the Foreign Intelligence Surveillance Act together come close to 10 percent of the Patriot Act (Tables 3 and 4). And amendments to a plethora of other legislation together constitute a further 16.7 percent of the Act. These many pages of substantive amendments to fields of law relating to crime, immigration, surveillance, and banking illustrate how the name ‘Patriot’ works to obfuscate. Rather than reflecting the content of the Act, the name “Patriot Act” reflects the politics of spectacle as a platform for globalized, militarized, imperialism. The Act is far more complex and confounding than the name ‘Patriot’ suggests.

In the process of amending prior legislation, the Patriot Act cites to the Constitution and fifty-four prior legislative enactments.94 I list the Acts cited in the Patriot Act in this absurdly long footnote95 because

91. PAUL W. KAHN, THE CULTURAL STUDY OF LAW: RECONSTRUCTING LEGAL SCHOLARSHIP 2 (2000). 92. Patriot Act, Pub. L. No. 107-56, § 102, 115 Stat. 272, 276 (2001) (codified as amended in scattered sections of U.S.C.). 93. I arrived at this figure by measuring the length of the body of text constituted by amendments and calculating amendments as proportions of the main body of the Patriot Act. I excluded the title page and the table of contents in making these calculations. 94. In citing to prior law, the Patriot Act sometimes names Acts in a way that includes the year of enactment, and sometimes names Acts only by the title letter or number of the United States Code or Public Law. 95. Where the Patriot Act identifies legislation only by a title number, I include, in square brackets the Acts’ subtitles. The 54 Legislative Enactments Cited in the Patriot Act are: Administrative Procedure Act Antiterrorism and Effective Death Penalty Act of 1996 Arms Export Control Act Atomic Energy Act of 1954 Bank Holding Company Act of 1956 Bank Secrecy Act Classified Information Procedures Act Code of Federal Regulations Commodity Exchange Act Communications Act of 1934

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citation, a “foundational dimension of human language and social life,”96

Controlled Substances Act Crime Identification Technology Act of 1998 Department of Justice Appropriations Act 2001 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2001. DNA Analysis Backing Elimination Act of 2000 Federal Deposit Insurance Act Federal Reserve Act Federal Rules of Civil Procedure Federal Rules of Criminal Procedure Federal Tort Claims Act Foreign Agents Registration Act of 1938 Foreign Corrupt Practices Act Foreign Intelligence Surveillance Act of 1978 Foreign Narcotics Kingpin Designation Act Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 Gramm-Leach-Bliley Act [also known as the Financial Services Modernization Act of 1999] General Education Provisions Act Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Immigration and Nationality Act Immigration and Naturalization Service Data Management Improvement Act of 2000 International Banking Act of 1978 International Emergency Powers Act International Financial Institutions Act International Security Assistance and Arms Control Act of 1976 Investment Company Act of 1940 Money Laundering Control Act of 1986 National Crime Prevention and Privacy Compact Act of 1998 National Education Statistics Act of 1994 National Security Act of 1947 Omnibus Crime Control and Safe Streets Act of 1968 Omnibus Diplomatic Security and Antiterrorism Act of 1986 Public Law 91-508 [1970 amendments to the Federal Deposit Insurance Act] Right to Financial Privacy Act of 1978 Securities Exchange Act of 1934 State Department Basic Authorities Act of 1956 Title 42, Code of Federal Regulations [Public Health] Title I of Public Law 91-508 [Fair Credit Reporting Act] Title IV of Public Law 107-42 [Air Transportation Safety and System Stabilization Act] Title 5, United States Code [Government Organization and Employees] Title 18, United States Code [Crimes and Criminal Procedure] Title 28, United States Code [Judiciary and Judicial Procedure] Title 31, United States Code [Money and Finance] Title 49, United States Code [Transportation] (115 STAT.381). Trade Sanctions Reform and Export Enhancement Act of 2000 Victims of Crime Act of 1984 96. Jane E. Goodman et al, Citational Practices: Knowledge, Personhood, and Subjectivity, 43 ANN. REV. OF ANTHROPOLOGY 449, 449 (2014).

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is especially central to legal discourse. Citation connects discourses and documents across time.97 In doing so, “citation never merely repeats an earlier utterance but reconstitutes discourse marked as prior (or anticipates future discourse) in relation to emergent concerns.”98 In other words, even as the Patriot Act is brought into being as an urgently needed new law, the citation to 54 enactments,99 together with the embedding of substantial amendments to prior legislation, expresses expansive connections with past legislation, and past moments in history.

In addition to revitalizing and reconstituting past legislative discourses through an (apparently) new enactment, the Patriot Act’s multiplicity of citations, alongside its embedding of amendments to other legislation, thwarts the readability and accessibility of the Act. Some of the effects on comprehension and accessibility might be illustrated by a brief example. Section 201 of the Patriot Act reads as follows:

SEC. 201. AUTHORITY TO INTERCEPT WIRE, ORAL, AND ELECTRONIC COMMUNICATIONS RELATING TO TERRORISM

Section 2516(1) of title 18, United States Code, is amended –

(1) by redesignating paragraph (p), as so redesignated by section 434(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132; 110 Stat. 1274), as paragraph (r); and

(2) by inserting after paragraph (p), as so redesignated by section 201(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104-208; 110 Stat. 3009-565), the following new paragraph; . . .

(q) any criminal violation of section 229 (relating to chemical weapons); or sections 2332, 2332a, 2332b, 2332d, 2339A, or 2339B of this title (relating to

97. See id. 98. Id. at 450 (emphasis added). 99. The Patriot Act also cites to text with legal status subordinate to legislation, such as Executive Orders, the United States Sentencing Guidelines, and the Code of Federal Regulations.

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terrorism).

The convolutions of this brief section might be unpacked as follows. For a reader, the text of primary engagement is Section 201 of the Patriot Act. Section 201 tells us that the Patriot Act amends a second piece of legislation, Title 18 of the United States Code. The United States Code is “a consolidation and codification by subject matter of the general and permanent laws of the United States” dating from 1948.100 Title 18, subtitled “Crimes and Criminal Procedure,” is the main federal statute governing criminal law and procedure. In amending Title 18 of the United States Code, Section 201 of the Patriot Act refers to a third enactment, the Antiterrorism and Effective Death Penalty Act of 1996.101 Section 201(1) of the Patriot Act refers to the Antiterrorism and Effective Death Penalty Act of 1996 in order to note that it was the Antiterrorism and Effective Death Penalty Act of 1996 that had designated paragraph (p) of Section 2516(1) of Title 18 of the United States Code as paragraph (p) but that the Patriot Act would now be redesignating paragraph (p) as paragraph (r). In other words, the amendment that is section 201(1) contains a brief note of legislative history. Section 201 of the Patriot Act then refers to a fourth enactment, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Just as the reference to the Antiterrorism and Effective Death Penalty Act of 1996 cites to a prior amendment, so too the reference to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 notes that paragraph (p) was designated as paragraph (p) by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 201(2) of the Patriot Act then amends section 2516(1) of Title 18 of the United States Code by inserting a new paragraph (q).

This new paragraph (q) refers to seven further sections of Title 18 of the United States Code. The first of these is Section 229, which consists of almost five pages of law relating to chemical weapons. In the course of these five pages, Section 229 refers to three other titles of the United States Code;102 four other enactments,103 one executive order,104 and the

100. Office of the Law Revision Counsel: http://uscode.house.gov/browse/prelim @title18&edition=prelim. 101. The Antiterrorism and Death Penalty Act of 1996 was passed as a response to the domestic terrorism of Timothy McVeigh’s bombing of federal offices in Oklahoma City in 1995. 102. 18 U.S.C. § 229-229F (2012)(Title 22, Foreign Relations and Intercourse; Title 5, Government Organization and Employees; and Title 10, Armed Forces.). 103. In two instances, these acts are named with their year of enactment: Export Administration Act of 1979, 50 U.S.C. app. § 2415 (2012); the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 853 (2012); the Immigration and

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1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.

In brief, to read the Patriot Act is to struggle with a disorienting plethora of citations that are primarily meaningful with reference to other pieces of legislation. Arguably, the Patriot Act dismantles genre conventions for legislation by being as fragmentary and as other- referencing as it is. In the process, the widely accepted liberal legal principle, requiring clarity and publication of law, is superficially observed: the Patriot Act has been published and is accessible online. However, the Act’s multiple references render it effectively obscure. Like a scavenger determined to uncover something of value, a reader has to sift, scrutinize, and then discard significant tracts of the Patriot Act in a search for meaning.

VII. EMBEDDED ACTS

In addition to being a law that substantively amends prior law, the Patriot Act holds embedded within it three new enactments. In embedding new Acts within itself, the Patriot Act undoes genre expectations that typically shape legislative text and, as a corollary, the legislative processes by which law is voted into being. When law-makers voted for the Patriot Act, they are unlikely to have plowed through the Act’s 174 pages of dense text to discover, in sequence, the three embedded Acts within the Patriot Act. If they had, they would have encountered the following titles.

Title III of the Patriot Act is the first piece of legislation held within the Patriot Act. This portion of the Patriot Act is simultaneously brought into being as Title III of the Patriot Act and as the International Money Laundering Abatement and Financial Anti- Terrorism Act of 2001. Taking up almost a full seventy-six pages of the Patriot Act, the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 appears, at first glance, to possess sufficient body to stand on its own as an enactment. However, the bulk of the International Money Laundering Abatement and Financial Anti- Terrorism Act of 2001 amends title 31 of the United States Code Money and Finance.

Next, a more confounding enactment within the Patriot Act is constituted by a single statutory section of the Patriot Act: Section 1011. Section 1011 is also the Crimes Against Charitable Americans Act of

Nationality Act, 18 U.S.C. § 1101 (2012); the Maritime Drug Enforcement Act, 46 U.S.C. app. § 1903(2012). 104. Exec. Order No. 13,128, 64 Fed. Reg. 34,703 (June 25, 1999).

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2001. Occupying about three-quarters of a page, this particular embedded act is thirty-nine lines in length. Sub-section (a) states that the section may be cited as the “Crimes Against Charitable Americans Act of 2001.” Sub-section (b) amends the Telemarketing and Consumer Fraud and Abuse Prevention Act. And Sub-section 1011 (c) and (d) amend Title 18 of the United States Code. Nothing in the text of these thirty-nine lines explains how and why a single statutory section, setting out three amendments to two other pieces of legislation, acquires the heft and stature to become a legislative enactment.

And third, Section 1016, the final section of the Patriot Act, is also the Critical Infrastructures Protection Act of 2001. Unlike the Crimes Against Charitable Americans Act of 2001, the Critical Infrastructures Protection Act of 2001 has some meaningfully distinct body to it. It also occupies about two pages (about a page and a quarter more than the thirty-nine lines of the Crimes Against Charitable Americans Act of 2001).

The Patriot Act’s embedding of three other enactments undoes a staple genre feature of legislation: a feature of structure which understands sections to legislation as the limbs constituting the body of that enactment, rather than as detachable, autonomous legislative text.

VIII. INNOCENCE/EVIL; US/THEM

Up to this point, I have described the convolutions of the Patriot Act’s actual text, the planetary jurisdiction the Patriot Act claims for America, and a populist politics of law as spectacle in the Patriot Act’s name and in the processes through which it was enacted. In this next section of the paper, I explore the binary innocence/evil as it plays out in the Patriot Act’s narrative of innocence and victimhood for America and Americans. Consistent with the broader cause-effect narrative of the War on Terror, the Patriot Act narrates 9/11 as its precipitating cause by rendering 9/11 into a kind of Day One: the moment inaugurating the War on Terror.105 This narrative of inauguration, “makes it appear that this assault was part of some diabolical deception that came like a bolt from the blue. There is no sense here that this attack was just the latest in a long-running cycle of violence and counter-violence between the American government and al Qaeda,” a cycle that peaked in the 105. See, for example, section 358 of the Act, amending bank secrecy provisions, which states, as findings of Congress, “given the threat posed to the security of the Nation on and after the terrorist attacks against the United States on September 11, 2001.” Patriot Act, Pub. L. No. 107-56 § 358, 115 Stat. 272, 325 (2001) (codified as amended in scattered sections of U.S.C.).

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1990s.106 The Patriot Act’s narrative that it is, as law, a necessary response to

9/11, is in keeping with a long-running dynamic of secrecy through which American publics, and even American elites, are kept ignorant of covert and violent U.S. foreign policy.107 The void in American public (and elite) knowledge relating to U.S. foreign policy helps consolidate the conditions in which simplistic cause-and-effect explanations, such as “they hate our freedoms,”108 gain traction. The dominance and repetition of the story that “they hate us” masks not just the void in American public knowledge revitalizes deeply entrenched tropes of racial and religious hatred within the United States.

In her compelling essay, The Citizen and the Terrorist, Leti Volpp analyzes the post-9/11 surge in hate violence in the United States.109 She argues that the “redeployment of old Orientalist tropes,” alongside racial profiling, help explain the “ferocity with which multiple communities [persons who appear ‘Middle Eastern, Arab, or Muslim’] have been interpellated as responsible for the events of September [11].”110 Through the racialization of this identity category, “members of this group are identified as terrorists and disidentified as citizens.”111

The “diabolical deception that came like a bolt out of the blue”112 version of events is only too coherent with racial hatred and with dehumanizing characterizations of the enemy as “‘evildoers’ beyond the scope of human community.”113 Constructing America as “innocent” and terrorists as “evil,”114 this account sidelines the possibility of perceiving terrorism “as an expression of social conflict reflecting possibly comprehensible grievances (albeit not necessarily justifiable).”115

Rather than remedying the erasures in public knowledge and addressing the problematic role of U.S. foreign policy, the Patriot Act re- inscribes the highly problematic forms of race hatred linked to 9/11 through two troubling provisions. Almost like book-ends, these two provisions sit toward the opening and the closing of the Act.

106. RICHARD JACKSON, WRITING THE WAR ON TERRORISM: LANGUAGE, POLITICS, AND COUNTER-TERRORISM 43 (2004). 107. CHALMERS JOHNSON, BLOWBACK: THE COSTS AND CONSEQUENCES OF AMERICAN EMPIRE, at ix-xxii (2003). 108. President George Bush, Address to Joint Session of Congress and the American People (Sept. 20, 2001). 109. See Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575, 1575 (2002). 110. Id. at 1575-76. 111. Id. at 1575. 112. JACKSON, supra note 105, at 43. 113. Brysk, supra note 37, at 4. 114. See JACKSON, supra note 105, at 59. 115. Brysk, supra note 37, at 4.

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Section 102, the second substantive provision of the Act (Section 101 establishes the counterterrorism fund), is entitled, “Sense of Congress Condemning Discrimination Against Arab and Muslim Americans.” The provision reads:

(a) Findings. – Congress makes the following findings:

(1) Arab Americans, Muslims Americans, and Americans from South Asia play a vital role in our Nation and are entitled to nothing less than the full rights of every American.

(2) The acts of violence that have been taken against Arab and Muslims Americans since the September 11, 2001, attacks against the United States, should be and are condemned by all Americans who value freedom.

(3) The concept of individual responsibility for wrongdoing is sacrosanct in American society, and applies equally to all religious, racial, and ethnic groups.

(4) When American citizens commit acts of violence against those who are, or are perceived to be, of Arab or Muslim descent, they should be punished to the full extent of the law.

(5) Muslim Americans have become so fearful of harassment that many Muslims women are changing the way they dress to avoid becoming targets.

(6) Many Arab Americans and Muslim Americans have acted heroically during the attacks on the United States, including Mohammed Salman Hamdani, a 23-year-old New Yorker of Pakistani descent, who is believed to have gone to the World Trade Center to offer rescue assistance and is now missing.

(b) Sense of Congress. – It is the sense of Congress that –

(1) the civil rights and civil liberties of all Americans including Arab Americans, Muslim Americans, and Americans from South Asia, must be protected, and that

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every effort must be taken to preserve their safety;

(2) any acts of violence or discrimination against any Americans be condemned and

(3) the Nation is called upon to recognize the patriotism of fellow citizens from all ethnic, racial, and religious backgrounds.116

Section 1002, towards the end of the Act (Section 1016 is the Act’s last provision) is similar in appearing to celebrate and protect American Sikhs with some very important differences. In particular, Congress finds that “Sikh-Americans form a vibrant, peaceful, and law-abiding part of America’s people.”117 In contrast, the Act’s characterization of American Muslims is muted. Instead of “vibrant, peaceful, and law- abiding,” like American Sikhs, American Muslims are, arguably, damned by faint praise: “American Muslims . . . play a vital role in our Nation.”118

Volpp contrasts popular and state responses to the Oklahoma City bombings and 9/11 to make the point that “racial subordination functions to understand nonwhites as directed by group-based determinism but whites as individuals.”119 The Patriot Act’s effort to denounce hate violence against an expansive category of nonwhite Americans is a reminder of how, as narrative action, legal language generates spatiotemporalities.120 In terms of the space of ‘nation,’ these two provisions can be seen as narrating the American nation as presumptively bearing the race identity “white” and the religious identity “Christian.” While the semantics of these two provisions read like a laudable, nation-making statement of American inclusivity, in the meta-pragmatics of “Othering”–segregating for special mention, naming through categories of race and religion, explaining turbans and noting the clothing conventions of Muslim women–in these features, America is spatially, and notionally, re-inscribed as “white” and “Christian.”121

This space-time notion of racial subordination in the American

116. Patriot Act, Pub. L. No. 107-56 § 102(a)(2), 115 Stat. 272, 391 (2001) (codified as amended in scattered sections of U.S.C.). 117. Id. 118. Id. 119. Volpp, supra note 108, at 1585. 120. See Richland, supra note 40, at 218; see also MARIANA VALVERDE, CHRONOTOPES OF LAW: JURISDICTION, SCALE, AND GOVERNANCE 43-53 (2015). 121. I am grateful to Beth Mertz for helping me figure out this puzzle between semantics and pragmatics.

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nation is, arguably, a continuing space-time. As recently as 2016, reports have surfaced of systemic torture directed at Muslim recruits in the U.S. Armed Services.122 Instructors call Muslim recruits “terrorists” and single them out for cruel and inhumane treatment.123

IX. CONCLUSION:

Joseph Masco writes:

The very real terrorist violence of September 2001 was quickly harnessed by U.S. officials to a conceptual project that mobilizes affects (fear, terror, anger) via imaginary processes (worry, precarity, threat) to constitute an unlimited space and time horizon for military state action. . . . Counterterror constitutes itself today as endless, boundless, and defensive.124

Like a microcosm of the broader discourse that is the counterterror state, the text of the Patriot Act illuminates a range of ways in which law takes on specifically post-9/11 expressions of globalized politics. Through spectacle, assertions of planetary jurisdiction, the pairing of inaccessible legal text with a populist naming of that text, narratives of American innocence, the presumptive whiteness of the nation, and an unending temporality for the Patriot Act, law’s jurisdiction and authority has been re-configured for our time of perpetual war.

122. See Christine Hauser, 20 Marines Face Discipline After Muslim Recruit’s Death is Ruled a Suicide, N.Y. TIMES (Sept. 9, 2016), https://www.nytimes.com/2016/09/10/ us/marine-corps-raheel-siddiqui.html. 123. Dave Philipps, Ex-Marine Describes Violent Hazing and the Lies that Cover it Up, N.Y. TIMES (Sept. 29, 2016), https://www.nytimes.com/2016/09/30/us/ex-marine-describes- violent-hazing-and-the-lies-that-covered-it-up.html. 124. MASCO, supra note 55, at 1.

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