Tuesday, September 08, 2009

Making Sense of the Previous Post

The following are excerpts from two journal articles with background for understanding the previous post. The "round and round" refers to the "singular acts of discretion that are often undertaken in secret and are thus effectively insulated from public view..."

Zaring, David, and Elena A. Baylis. "Sending the bureaucracy to war." Iowa Law Review 92.4 (May 2007): 1359(70). David Zaring is Assistant Professor, Legal Studies Department, Wharton School of Business.

"Second, these anti-terrorist measures diminish administrative effectiveness by going to extraordinary lengths to privilege agency discretion, thereby reducing agency accountability and, predictably, resulting in increasingly arbitrary and unreviewable agency action. We call this the problem of overdiscretion. It is a maxim of administrative law that the authority delegated to administrative agencies should be paired with safeguards on the abuse of that authority. Accordingly, administrative agencies have traditionally operated publicly and openly and usually pursuant to a tested and established framework of rules. Agency rulemaking is governed by requirements for public notice and comment, while agency adjudication is subject to judicial review or, at a minimum, to supervision by senior executive branch officials. But the administrative initiatives against terror routinely reduce what have traditionally been participatory, reviewable rulemaking or adjudicatory processes to singular acts of discretion that are often undertaken in secret and are thus effectively insulated from public view and from judicial, or even supervisory, review. Furthermore, these measures often place this decision-making authority in the hands of mid-level or even street-level bureaucrats, such as office directors in the Department of the Treasury in the case of the terrorist financing programs, or low-level state employees in the case of the drivers' license programs created by the REAL ID Act. The allocation of discretion to bureaucrats who are all but insulated from oversight has, at least in the case of anti-terrorism regulation, become a license for arbitrariness."

Ward, Ian. "Terrorists and equivocators." Law and Humanities 1.1 (Summer 2007): 111(21). Ian Ward is Professor of Law at the University of Newcastle-upon-Tyne.

"This rhetoric, of testament and crusade, is as reckless as it is ignorant and perverse. Slavoj Zizek warns against 'our warriors on terror' seemingly 'ready to wreck their own democratic world' out of a visceral 'hatred for the Muslim other'. He is right. There is little to be gained by situating Islam as an enemy, just as there is little to be gained by constructing fantastical bogey-men. But we continue to do so all the same. Islamophobia has become a hallmark of modern western popular culture, the image of the devious, rapacious, endemically violent Islamic terrorist a staple of our cinematic and literary diet. Where the 'chosen people' were once terrified by the dreaded papist, they are now terrified by the dreaded Islamist. It is a fear, as Edward Said suggests, that has, over the centuries, become 'woven into the fabric' of western cultural 'life'. Here again, our craving for terror, and to be terrified, seems to be unquenchable. We live, as Benjamin Barber has rightly suggested, in an 'empire of fear, possessed of a terror that we have essentially 'conjured' for ourselves. . . .
Ultimately, the presumed, or contested, acuity of the 'clash' of civilisations thesis is less important than the insinuation. There maybe no necessary association between militant jihad and the philosophy or jurisprudence of Islam. It may well be the mutant figment of an orientalist, even racist, political and cultural imagination. But it does not need to be accurate or apposite. What matters, sadly, is that so many are deluded by the supposition. Again, the prophecy fulfils itself. On the one hand, there are plenty of disenchanted and dispossessed young Muslims who are all too easily persuaded into thinking that theology justifies terror. To them, bin Laden's rhetoric 'makes sense', in the same way as Borromeo's Testament impelled young Catholics such as Robert and Thomas Catesby to risk their lives 400 years ago. On the other there is a 'western' populace that appears to be all too ready to embrace the rhetoric of the apocalypse, to suppose that the 'blatant Beast' is abroad once more, to believe that America and its allies have a moral duty, a divine calling even, one which justifies the presence of their crusaders across vast tracts of the Middle East, from Qom to Kabul. The alternative fantasies, as is so often the case, are mutually sustaining. They nurture the terror, and the tragedy."


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