Regarding this, it is believed, that the “qualitative” increase in the terrorist threat, always more net-like and always more global, requires a ‘globalization’ and a ‘net-work’ of the juridical space.
It would be desirable, for instance, if there were a common effort to animate judiciary mechanisms which would allow the transformation of intelligence – the collection of information – into evidence. In other words, into proof which could be produced and accepted in court.
This position although argued with strength, also on these pages (2) and although useful to the development of the policies of security, appears to contain, in its premises, a very questionable conviction: namely, that the judiciary order must deal with security and, in particular, with the fight against terrorism.
Now, the adaptation of the laws and the judicial function to the new terrorist threat is, undoubtedly, desirable. And we must recognize that many efforts are being made both in Europe and in the United States. But this concerns the war on terrorism only indirectly. This is because the judicial function, as is well known, consists in the guarantee of the effective application of the legal regulations and can, therefore, be exercised only in the presence of a controversy on the application of said regulations. The point is that the very processes of globalization require a greater commitment from the executive in matters of security and intelligence. We would all like to see the terrorists behind bars, but the ultimate objective of the war on terrorism is the strategic defeat of the latter and its neutralization on operative grounds. The judicial element is important, but it is external - and must remain external - with respect to the resolution of this telos.
Nevertheless, the question arises from the fact that, all over the world, a marked expansion of judicial power, in connection with the development of globalization processes, can be observed. First of all, we intend to sustain that such expansion need not necessarily be directed towards the ambit of security, or even better, it would be in the interests of both the judges and the governments, if it were not. Furthermore, we would like to sustain that it is possible – and desirable – that governments conserve and reinforce their competency in such matters, re-interpreting the persistent need for ‘accountability’ – no longer referring to closed communities within rigid territorial boundaries, but to a civil trans-national society, which is always more extended and dynamic.


The expansion of judicial power

Let us start, therefore, with the expansion of judicial power. We suggest the following definition of the phenomenon: assertion of judicial decisions and court procedures in the political arena. We may call it, in fact, a sort of “juridicalization of politics” (3) .
This process, in turn, accompanies an increasing integration among the national judiciary environments, in the sense that the judges tend to behave as if the world were evolving towards the formation of a sole jurisdiction, thus producing a prophecy which verifies itself. It is a typical phenomenon of democracies.
It has been rightly observed that it is very difficult to imagine a dictator who invites the judges to participate in public decisions, without regard to “uniforms” or ideologies” (4) .
Among the first to study the phenomenon was not, just by chance, also the first scholar of American democracy, as well as, the standard-bearer of modern studies on juridical systems, Alexis de Tocqueville, who noted that in the United States there was no political event for which the “authority of a judge” could not be invoked (5) .
Today, the Courts have a growing role in many western countries, just as in Africa, in Asia and in Oceania, We can speak of a sort of “ubiquity” (6) of the Courts and of the judges, called to solve important political questions. The case law of human rights, for example, now, has a world-wide character and does not recognize national state borders. It can actually determine changes in constitutional charters, compelling new interpretations – and almost always more extensive – of the already contemplated rights. Decisions in matters which were once considered “the exclusive responsibility of the national State”, are taken, more and more by judges, today (7) . The Courts, in many cases, write and re-write Constitutions and the Declarations of rights, having the human being as a point of reference, and not the States with their respective legislations. The Courts can also influence legislative processes, channelling parliamentary activities into rigid paths which the Courts themselves have outlined. They can also influence the national judiciary systems, independent of their territorial location. The arrest of Pinochet in the United Kingdom, on input originating from Spanish authorities is, by now, a case for the books. This, as far as journalistic news goes. On Institutional grounds, we can recall the emblematic case of the launching of the European arrest warrant, the acceptance of which, sic et simpliciter, without the modifications introduced by Parliament, could have upset our constitutional system.
Where does this expansion of judicial power come from?
First of all, there is a new concept of democracy – interventionist and tendentially trans-national - which, to a certain extent, is already present in the American intervention in the two world wars, but was left buried, let us say, for forty years under the blanket of the cold war.
There is, moreover, a growing process of legitimization of the so-called “creativity” of the judges, on the part of both jurists and public opinion. The “decision” of a judge in matters such as fundamental rights or the protection of the consumer, for example, is never an object of contention, but rather, of analysis and of discussion: it is a “fact” to discuss, not a problem.
To this is tied the growth of the “culture of rights”. In all fields – from economy to politics, from culture to entertainment – the question of rights becomes determinative for the definition of institutional and personal competency. It is a sort of Copernican revolution: one does not start from the “system” to establish the rights, but one starts from the rights to establish the legitimacy of the system. The role of the consumers’ associations is emblematic in this regard. They challenge institutions which, for a long time, have been untouchable - private property, commercial communications, commercial competition – to start from, for example, the right to health. The World Organization for Commerce or the European Community, intervene heavily in the domestic productive life of countries, imposing regulations for security and production techniques or economic guarantees: those concerned protest for “more power” with respect to the legislative systems, putting our constitutional traditions to a hard test (8) .
Globalization is characterized by the multiplying of suppliers and users of legal expertise, for the diversification of questions of justice, for a weakening of the traditional hierarchical structure of the sources system: a reticulated system is established, in which the input and output exchange their roles. The judicial power can take advantage of the ‘enforcement’ of the law which is a “less weighty” procedure than the legislative one (9) , and can, therefore, move with more immediacy and flexibility than is allowed to the political institutions.


The internal/external paradigm

The expansion of judicial power can be considered as our civilization’s answer to the sovereignty crisis. At the same time, such an answer, if not re-elaborated by the political power, might accelerate that crisis, directing it towards a progressive dissolution of the political sphere.
The determination of the sovereignty principle on the modern political horizon, implies the subdivision of this latter in “external” and “internal”.
In other words, sovereignty is necessarily bi-directional. With the “rule of law”, moreover, we have an increasing limitation of the internal sovereignty: “Rule of law” internally and absolute power externally, grow together like two faces of the same coin” (10) . This presupposes, of course, that there is a well defined “internal” in contraposition to an “external”. On the basis of this paradigm, there is, in the West, the doctrine of the separation of powers, which is characterized, in continental Europe and the United States, by a particular “isolation” of the judicial power with respect to the Executive and Legislative powers, while in the British tradition, the principle of the “supremacy of the law” allows the judicial to have control over the executive “in the mechanism of the judicial control of powers” (11) . The fundamental point remains that of the separation between the executive power, “which almost always needs instantaneous action” - according to the well-known description of Montesquieu (12) - and the administration of justice.
Now, however, sovereignty is in total decline, to the point of being considered, in theory, “a pseudo-concept or, worse still, an anti-juridical category” (13) . And this decline corresponds to the decline of the paradigm “external/internal”. The point is: the present crisis of sovereignty puts into difficulty the primacy of politics which, in this case is identified with the exclusiveness of the responsibility of the executive in matters of security?


The decline of sovereignty

A state model, established in a process which started after the end of the Thirty Years War, (the date is 1648, the year of the Treaty of Westphalia) is in crisis. That model consisted, substantially, in a juridical rationalization of the political identification between state and nation, on the basis of which we can represent the situation of international relations, likened to “a billiard table where objects, of equal spherical form and structure, move. At least, if they are observed from the outside” (14) . This was, naturally, an “ideal” representation in the technical meaning of terms. It was a “model” for the interpretation of reality and for the construction of the decisional processes. In other words, decisions were taken “as if” there were a perfect congruity between decision agents and contexts in which the decisions had effect (15) .
It cannot be denied that, today, a great part of the decisions in matters of finance, information, and even the political economy, escape the direct control of the politicians. We are speaking of direct control because indirect control can be exercised through informal organizations having a “horizontal” character, like G8. In other words, governments can regain some competency if they give up the “syntax” of the national state, which is formal and hierarchical. However, whoever decides ’locally’ cannot but take into account, the fact that their decisions will have a global effect, which will be beyond their control.
A particularly complex problem, in this regard, is the “consensus” to the decisions.
We are accustomed to consider, as a great conquest of the 20th century, the fact that the ultimate source of legitimacy of the public decisions is the popular consensus, expressed through the mechanisms which rule the citizens’ participation in the democratic life. But the point is, that until a short time ago, the ambit where the consensus was determined coincided with the ambit where the effects of the decisions were felt. This coincidence guaranteed the respect of the principle of responsibility. If Government A took a decision, this would affect the citizens of country A, whom, if necessary, could call the government to account. When it happened that the decisions of Government A affected the citizens of country B, then the solutions were, roughly, two: war or integration. Europe has known both these solutions. And now, the entire world is going towards forms of aggregation. But such aggregations give way to asymmetrical and incongruent relations, which put to an extreme test, the rationality of our economic and political systems: a discovery in the pharmaceutical field can provoke a crisis in the economy of a region, a group of consumers can bring a multinational to its knees, a multinational can provoke a civil war in a country, the fall of a company’s shares can determine a political crisis in an entire area of the planet, a terrorist group can “wage war” on a national state, and so on.
This means that the integration evolves in a non-“Cartesian” way, that is, in a manner not reducible to congruent factors. In the final analysis, it does not seem possible to think in terms of a kind of world super-state because it is that very model – the construction of subjects on the basis of the integration of other subjects – which is in crisis.


Crisis of the national State
and Democracy

The fundamental issue of the “internal/external” paradigm is political and consists in the rationalization of the public behaviour and in the anchorage of power to responsibility. So, we can say that the link between state, nation and territory is no longer functional to that political issue. In this sense, therefore, there is no decline in politics, but there is a decline of the possibility of founding political action on the link between state, nation and territory. The no-global movement, which will be discussed further on, represents, in this sense, an example of politicization beyond that link and not describable according to the internal/external paradigm.
In this sense, we can talk of a crisis of the parliamentary democracy, understood as an “instrument” of legitimization of state decisions, for its original national-territorial dimension. The crisis, however, does not concern the need to which the democratic institutions try to respond, that is, Accountability, the correspondence between power and responsibility.
To sum up, in the West, the legitimization of state decisions continues to be founded on the possibility of establishing congruent and symmetrical relations between decision agents and the ambits where the decisions are felt. Only that those relations, those subjects and those ambits are no longer describable by resorting only to the geometry of the national territorial states. It is necessary to consider them in reference to the new western civil society, which is forming due to the effect of the globalization processes. This civil society is divided at its interior – sometimes in a very complete way – because of social conditions and interests, for ethical and religious beliefs, for cultural orientation and life styles. But such divisions, however, no longer correspond to the nation – state – territorial divisions. Not that these latter have disappeared, but they tend to become “options” and “opportunities”, rather than starting points or constitutive limitation of action.
The no global movement, for example, can be considered like the most visible and noisy part of this new civil society. It is the more politically involved and antagonist component. But there are, however, many other components – in the world of finance, culture, work, education, commerce and so forth – which have relations of conflict, complicity or of a transversal nature with the no-globals, not having, at this moment, the same visibility.
This civil society, obviously, does not have a parliament and, probably, will not pose the problem of having one in the future. But it already has a thousand pressure instruments to make their reasons heard and their interests protected. States and national governments can conserve or even reinforce their own role, if they are able to respond to the new trans-national need of Accountability, or rather, if they are able to guarantee an acceptable congruity of power and responsibility, also in the global age.
The states are still the only legitimate holders of coercive power. And it does not seem that the situation will change in the near future. Such monopoly, in fact, is functional to the same processes of globalization. The State guarantees the possibility of keeping alive forums of “last appeal” for the resolution of conflicting interests, which, for practical reasons, are resolved in itinere and with the recourse to new forms of arbitration, but which, to be recognised, have need of the reference to a possible final solution imposed by force. And this the State can do, insofar as it is legitimized by the fact of being guarantor of non-negotiable ‘goods’, such as individual and collective security, basic human rights, things which, by definition, cannot be guaranteed with the “real time transactions”, which characterize the global society. In other words, the State, insofar as it is the sole legitimate holder of coercive power, can move its role from the national-territorial dimension to the trans-national dimension, maintaining, however, the former as the historical source of legitimization. In this sense, the future of the states seems entrusted to their capacity to build informal agreements like G8, negotiating quotas of (residue) sovereignty, in exchange for agreements on the protection of the non-negotiable ‘goods’.


From international insecurity
to global insecurity

Let us try, therefore, to reach a conclusion in merit of the questions – strictly connected – to the expansion of judicial power and the crisis of the national state.
The expansion of judicial power does not, necessarily, lead to the acquisition of responsibilities by the magistracy, in matters of security. This depends on the political choices that are made. The great changes which we have tried to describe above, do not, of themselves, impair the substance of the Western political systems, or rather, they do not question the tie between power and responsibility or the principle of the separation of powers. One could say that the changes in progress question the morphology of the above systems, but not their DNA.
In fact, the natural tendency of the judge goes towards the affirmation of the primacy of rights over legislation, not, certainly, towards assuming responsibilities in matters of security. Nevertheless, given the growing reliability and popularity of the judges, together with their always more frequent trans-national and trans-regional interconnections, it could happen that, in the absence of a global political initiative in matters of security and intelligence, judicial power will expand, also in this direction.
On which basis can one conceive the above “global political initiative”? “Security” comes from the Latin 'sine cura'. The citizen has the right to live in a state which is free from continual anxiety for his own safety and that of his kin. His renouncement of violence, as Hobbes might have expressed it, represents a commitment from the state, in this sense.
In the world of the national states, the coincidence between state, nation and territory made it possible for the State to offer security in exchange for obedience and loyalty.
Now, we must try to ‘re-think’ that role, in a world in which such coincidence tends to dissolve.
If we look at the origin of that dissolution, we can form an idea of the possible developments of the question. During the cold war, a civil Euro-American society is formed in virtue of the contraposition of the communist block. The interconnections and the interdependences are reinforced in the Western block. It is, by way of saying, a sort of globalization “under the umbrella of NATO”. Such a process is particularly intense in Europe. Thanks to the 'sine cura', guaranteed by the American super-power, the Europeans can make gigantic steps in their process of integration. The aspects tied to a military-type confrontation with the communist world weigh, for the most part, on American politics.
After the “fall off the wall”, the world has become one single arena.
The flow of information, money, resources and people, were not, and had not been, for some time, describable within the national state logic. Nevertheless, the weakening of the national state, was to a certain extent, “controlled” within a structure - that of the Atlantic Alliance – which, in a way, functioned as the national state.
Today, it is no longer so. Insecurity is “global”, or rather, it escapes the national- state geometry. Among the protagonists of political life, there are, more and more, communities of various kinds, of a “diasporic” or territorial character, which place themselves transversally with respect to the national states and also, with respect to themselves, in the sense that one can be a member of several different politically important communities at various levels. And this involves a re-definition of the role of national governments, since the states conserve the monopoly of the legitimate use of force.

But the determination of such legitimacy is no longer describable according to national-territorial logic and requires, instead, the adoption of trans-national paradigms.
Consequently, we have passed from a “territorial” security, that of the first half of the 20th century, founded on the principle of sovereignty and on the principle of equilibrium between the powers, to a security of “system”, based on the equilibrium between the super-powers, to arrive at a security which directly concerns peoples, individuals and the community. Therefore, it is no longer possible to speak of security by making exclusive reference to the existing relations between national and international political subjects which are formally recognized.


Accountability

The fundamental problem at the base of the security question always remains the same: “Accountability”. Who replies to public opinion if there has been a terrorist attack? Who assumes the responsibility of saying that everything that could have been done, has been done or vice versa, errors have been committed? Only the inertia of governments can produce, in the long run, an expansion of judicial power in this direction. A judge, by definition, cannot be called to account for a terrorist attack. A judge cannot be accused of a lack of preventive measures. The finger cannot be pointed at a judge for having liberated a noted terrorist because there are not sufficient elements to keep him in gaol. A judge must be a guarantee for everyone, even for the most savage terrorist.
Vice versa, the “government” is one of the parties to the case: It is held to guarantee the safety of the citizens and for this it must account to the public opinion. It can choose many paths to guarantee this safety. But none of these paths can have anything to do with the judicial function, insomuch as, not only does it contrast with the principle of the separation between powers- first guarantee of the protection of rights – but also because it would be a diminution of the judicial function itself, which would become encased in administrative and bureaucratic logic, just while it, also in continental Europe, tends towards the affirmation of the figure of “judge of the rights”.
Certainly, it is desirable that there are laws which can answer the new threats to security. The Art. 416 bis of the Italian Criminal Code has, without a doubt, contributed to the fight against the mafia. On the other hand, however, the Italian experience cannot be considered a valid model for the entire world. In Italy, the protagonists in the fight against the mafia were and still are, above all, the public ministries, who are part of the judicial order. It is an exclusively Italian anomaly which can have a thousand plausible explanations and just as many counter- explanations, but certainly, cannot be considered a model.
To reply to the question of Accountability, ample discretionary powers are needed. And whoever has discretionary powers must be called to account for the use of them. In summary, to be called into the picture are, exclusively the political powers, who are expected to guarantee “ predictability” together with “ stability”. And this is valid precisely in consideration of the “seriousness” of the new threat.
Today, the threat “de-materializes” and its protagonists are always less able to be represented, according to parameters of individual subjectivity in juridical terms. The “netwars” also characterize themselves by the possibility offered to the militant revolutionary, to take part in a subversive action without running into the meshwork of the law, or rather, behaving in such a way as to be “not represented” within the judicial syntax. To resolve this problem, from a judicial point of view, would mean seriously threatening certain fundamental rights, such as the right to privacy, the presumption of innocence and the liberty of movement.
The “juridicalization” of the fight against terrorism, in such a framework, could be a serious threat, not only to the constitutional equilibrium, but also for the fundamental rights themselves.
Certain behaviour is “invisible” from a judicial point of view. Undoubtedly, it is possible to make it visible, but there is also a very high risk of tampering in the region of fundamental rights.

The logic of the “shared objectives”, for example, allows participation in a terrorist attack, without being criminally indictable. The construction of the attack, in fact, can come through an assemblage of information, signals and indications, but also through people and materials, which result “invisible” on judicial grounds, but are not, in any way, less effective. Today, the threats are made in a non-congruent way, with respect to the national-state logic, and can be confronted only by who possesses ample discretionary powers of decision and ample operative flexibility. Discretionary powers and operative flexibility which, obviously, must be accounted for.
This involves strong responsibilities for the political powers, but also implies a morphological change of this last, as already mentioned.
To move within the global environment, one cannot always rely on pre-established institutional automatisms and decisional mechanisms. More and more frequently, the decisions cannot descend from a single comprehensive pre-established representation of reality. It is necessary to have at one’s disposal, not only real-time information, but also the capacity to search, select and organize the information into many different scenarios, with flexibility and on different levels, simultaneously, in the immediate, brief and medium terms and also in an “historical” perspective - since the main lines on which the new threats move often have, at their roots, “outlooks on the world” which are antagonistic towards the Western culture.
The political power is in a condition to radically redefine its own role - without impairing its genetic patrimony, without putting in question the fundamental principles of the separation of powers and the state monopoly of the legitimate use of force - by taking advantage of “regional” and “trans-national” agreements, at various levels. Besides, this is the only path for the national governments, if they want to continue to have weight on the world scene. If the security politics and intelligence activities of the western countries do not “globalize”, obviously, not in the sense of the flat (and Cartesian) internationalization, but in the sense of acquiring a congruent morphology with respect to the complex processes of globalization – then, it will be fatal if the judicial power, which is globalizing at a rapid rate, concerns itself - with the consensus of public opinion - also with security and the fight against terrorism.


The American reform.
A pilot-project?

The enquiry conducted in the United States after the 11th September attack, on the “failure” of the Intelligence community to avert terrorist attacks on American soil, has highlighted how the judicial approach was one of the causes of its failure.
In particular, it was underlined how the “judicial” attitude of the FBI, which is answerable to the Department of Justice, contributed to render the system vulnerable. It should be pointed out that when we speak of “judicial approach”, in this case, it does not refer to the function of judging: the judges have nothing to do with the executive power. But it refers to the fact that the FBI is accountable to the Minister of Justice, who superintends all the criminal trials: all the attorneys are responsible to him and they, in turn are nominated by the Chief of the Executive. But even this aspect of the judiciary, tied to the responsibility of the Executive, is considered potentially dangerous with respect to the fight against terrorism: even though it is conducted under the guidance of a politically responsible attorney, the search for “evidence”, it is observed, cannot be the first priority of those who wants to stop an attack or neutralize a group of terrorists.

The theories sustained in the enquiry of the Summer of 2004, has been confirmed in a new enquiry, results of which were published in the Spring of 2005 (16) . In this document, it is stated, among other things, that the “external/internal criterion is not suitable to combat terrorism (17) nor to face the ample spectrum of today’s threats, which tend to evade a judicial type category (18) . Evidently, the problem is not that of giving new responsibilities to the judicial functions but if anything, to avoid that the demands of security and the principle of legality come into conflict (19) .
In certain respects, the American experience, still being developed, in the area of Service reforms, can represent a model of global integration.
The key point seems to be that of the centralization of the decisional responsibilities. This, certainly, does not mean being responsible to a single person. But signifies bringing all decisions in matters of security and intelligence to a high discretionary level which, in turn, reports to a political responsibility. In this regard, we think it useful, for example, to suggest the strengthening of relations between the Executive and the Intelligence. This does not mean the ‘politicization’ of the services, but rather, of rendering the politicians more responsible. The two interlocutors of two different countries must be “congruent” in matters of the institutional role, discretionary powers and decisional capacity.
To put it simply, the “global” integration between information and resources, could be made easier for the very reason that it is directly connected to the discretionary
politics. There would no longer be “technical” screens to evade responsibility.
In conclusion, globalization concerns the law as much as it concerns terrorism, the economy as much as information, the finance as much as the movement of opinion….. the lack of globalization in the politics of security and intelligence activities would provoke a drastic- and perhaps, tragic – re-dimensioning of the political sphere in the entire world. Globalization, security and intelligence – we have already said it, but we want to repeat it - has nothing to do with either, the processes of unification or the processes of internationalization.
Globalization means integration/differentiation: “think globally, act locally”. And this can be done only with the personal commitment of politically responsible subjects.