Though intended to be temporary in nature, Agamben argues that the ‘state of exception’ has become a permanent fixture of democratic governance. This ‘war’, declared by the US and its allies against a tactic, and therefore unbound by time or space, is ongoing.
Today marks the seventy-first anniversary of US Executive Order 9066, which led to the forced internment of more than 120,000 Japanese and Japanese-Americans who lived along the West Coast of the US. Under US president Franklin D. Roosevelt’s order, these individuals and families were sent to internment camps, forced to leave their homes, sell their businesses and possessions for no other offense but, as the title of one victim’s memoir put it, ‘looking like the enemy.’
Though it took more than four decades, the injustices suffered by the victims of these internment camps were finally recognised in the 1988 Civil Liberties Act, authorising reparations of $20,000 to each living survivor of the camps. However, the rights violating policies and practices associated with the ‘war on terror’ show that more profound lessons regarding the slippery human rights slope entailed by legal exceptions made in ‘times of crisis’ have yet to be fully learned.
In his report to government officials justifying the need to intern the ‘enemy race’, General John L. DeWitt, commanding officer of the US Army's Western Defense Command, wrote: ‘There are indications that these [Japanese] are organized and ready for concerted action at a favorable opportunity. The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken’. In doing so, DeWitt evoked one of the underpinning assumptions of the ‘state of exception’: the ‘enemy’ is guilty until proven innocent.
As with Bush’s infamous ‘you are either with us or against’ us in the ‘war on terror’, these words were intended to galvanize an emotionally sensitive moment by evoking a Manichean division of the world between friends and enemies. They also contributed to the ongoing construction of an ‘existential’ enemy ‘other’, against whom exceptional means are sometimes deemed necessary, including those in violation of the international law and established human rights norms.
As the Italian philosopher Giorgio Agamben explained, the ‘state of exception’ is not characterised by ‘a special kind of law (like the law of war)’ but rather by the ‘suspension of the juridical order itself’, marked by ‘the extension of the military authority’s wartime powers into the civil sphere’ in which the normal protections provided by the constitution and rule of law are no longer provided. Though intended to be temporary in nature, Agamben argues that the ‘state of exception’ has become a permanent fixture of democratic governance.
The ‘state of exception’ as applied in the ‘war on terror’, a ‘war’ declared by the US and its allies against a tactic, and therefore unbound by time or space, is ongoing. One of its most prominent features is drone warfare, initially focused on established ‘war on terror’ battlefields such as Afghanistan, Pakistan, Yemen and Somalia, and now expanding into largely unchartered territory, as evidenced by the opening of a US drone base in Northwest Africa coinciding with the US-backed French intervention in Mali. First established under the Bush administration, and touted by its supporters as a relatively cheap and technologically sophisticated means of targeting suspected terrorists in remote areas, the programme has expanded seven fold under Obama. The ‘guilty until proven innocent’ premise on which the targeted-killing programme is based, demonstrates the current president’s similar disregard for international law and humanitarian norms when it comes to fighting terrorism.
The recent passage of the US 2013 National Defense Authorization Act (NDAA) and the choice of newly inaugurated US President Barak Obama’s chief counterterrorism advisor, aka the ‘assassination tsar’, John Brennan to head the CIA, signal that the legal and discursive components of the ‘war on terror’ will be further institutionalized over the next four years.
These developments are connected to an overall restructuring of US power in the region, linked to ethical and strategic losses in the wars in Iraq and Afghanistan, an economic crisis at home, the multipolarisation of power in the international system and increasing attention to developments further east. In the coming years, US austerity intervention in West Asia and North Africa is more likely to take the form of covert military operations rather than boots on the ground, and a greater reliance on regional allies.
The US’ ability to project its power in the region has proven adept at responding to fast moving developments on the ground in the past. However, ongoing challenges to the dehumanising discourses, policies and practices associated with the latest iteration of US hegemony have also proven dynamic, and have taken several different forms over the years. In many ways, the Arab revolutions and ongoing political and socio-economic mobilisations in the region are both a cause and effect of the radical structural transformations now taking place in the international system. Another example is the various forms of legal resistance to the rights violations entailed by the US declared ‘state of exception’ in the context of the ‘war on terror’.
Political Islam in the ‘Arab spring uprisings’
Similar to the ‘civilising mission’ of the former European colonial powers, the discourse on political Islam as it developed during the ‘war on terror’ years has performed an important identity function, and has depended upon an ontological distinction constructed between ‘their’ violence and ‘ours’. The discourse is predicated on what Mahmood Mamdani referred to as the ‘good Muslim/bad Muslim’ distinction, in which the latter is viewed as backwards, violent and anti-western, and the former as modern, moderate and westernized.
The ‘bad Muslim’ in this context came to occupy Agamben’s category of ‘bare life’, a ‘life devoid of value’ in which ‘sovereignty of man over his own existence’ can be denied. Or, as Chantall Mouffe has put it, they have been designated ‘absolute enemy’, an ‘entire categor[y] of citizens who for some reason cannot be integrated into the political system’. By tapping into what Arshin Adib-Moghaddam has described as a racist ‘cultural current’, the discourse contributed to the normalisation of rights violations committed against the ‘bad Muslim’ other.
In recent years the ‘war on terror’ discourse has adapted to a changed geopolitical context resulting from the ‘Arab spring’ uprisings, in which the US and its European allies have had no choice but to engage with former enemies. Today, it seems more apt to discuss the discursive distinction made between ‘good’ Islamists (e.g. those movements influenced by Turkey’s ‘moderate’ and neoliberal AKP) versus ‘bad’ Islamists (e.g. various Al Qaeda linked movements as well as a panoply of salafi groups that have emerged in the region in recent years), based on consideration of the relative amenability of the individuals or movements to US economic and/or foreign policy interests in the region.
This dramatic shift in approach has seen the US vow to work with the newly elected Islamist parties in Tunisia and Egypt so long as ‘they play by the rules of the political game’. Considering the US has worked closely with dictators in the past, one may assume that these ‘rules’ refer not to the functioning of a democratic polity, but rather to the various red lines the US has established in order to protect its ideational, political and economic interests in the region, specifically regarding neo-liberal economic policies, Israel and continued security and intelligence cooperation in the ‘war on terror’. As Clinton put it in her farewell speech, today’s enemies are those that threaten ‘America’s ability to project power all over the globe’, with the greatest ‘terrorist threats’ emanating from Yemen and North Africa.
Obama’s ‘war on terror’: Plus ca change
Much excitement was generated by Obama’s election to his first term office on a platform of ‘hope’, in which he promised to change some of his predecessor’s more odious ‘war on terror’ foreign and domestic policies, vowing to close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. However, it soon became apparent that rather than ‘change we can believe in’, Obama’s policies in this area belonged more to the plus ca change category, as he went on to institutionalise and even expand many of the illegal practices associated with the ‘war’, including warrantless wire tapping of US citizens’ communications, and increasing use of targeted assassinations and drone warfare.
Obama’s failure to follow through with his election pledge and 2008 presidential decree to close Guantanamo came as a huge disappointment to human rights activists around the world. This disappointment has been compounded by Obama’s recent decision to sign into law the 2013 NDAA, in which he missed out on an opportunity to fix the indefinite military detention provisions in last year’s NDAA and colluded with Congress to make it harder to transfer detainees out of Guantánamo. As Aisha Maniar from the London Guantánamo Campaign has argued, the NDAA 2012 effectively ‘exported the regime at Guantánamo elsewhere, including the US mainland by extending detention without trial provisions to all US citizens’. Pessimism in this regard is only reinforced by the recent announcement that the office of the special envoy for the closure of the extra-constitutional prison camp at Guantánamo Naval Base would itself be closing. Of the remaining 166 prisoners who continue to languish in Guantanamo, 86 have reportedly been cleared for transfer, yet are still kept in a legal limbo. Four prisoners have died while detained in Guantanamo. Nine individuals have died since the prison was opened 11 years ago, including six of suspected suicide.
Many people also believed that Obama would end the rights-violating practice of ‘extraordinary rendition’. Rendition of terror suspects to third countries for trial was a practice that first began under the Clinton administration. However, in their ‘war on terror’ manifestation, as Lisa Hajjar has explained, renditions became ‘extraordinary’, ‘meaning that the objective of kidnapping and extra-legal transfer was no longer for trial but rather interrogation for actionable intelligence’. While some people rendered through this programme ended up in CIA black sites, ‘others were turned over for torture-by-proxy to other regimes.’
Under Obama, this practice has taken on yet another Orwellian manifestation. Described by Nick Baumann as ‘proxy detention’, individuals are arrested by local authorities, often subjected to harsh interrogations ‘and sometimes abuse’, and later transferred to the US and tried on terrorism charges. ‘Proxy detention’ has been criticized by civil libertarians worried that it is being used as a ‘way for the US government to avoid granting terrorist suspects due process rights they would have if they were in US custody.’
Finally, human rights defenders have roundly criticised Obama’s choice of Brennan to head the CIA primarily due to his instrumental role in developing and implementing Obama’s ‘targeted killing’ program, which has resulted in thousands, if not tens of thousands, of deaths. Between 2,629 and 3,461 people have been killed in Pakistan alone since 2004, in over 350 drone strikes. Drone strikes in Yemen have also been on the rise, with 8 already carried out in 2013, including three people killed on the day of Obama’s inauguration.
One of the most contentious aspects of this policy is the ‘controversial method’ used for determining how many civilians have been killed by drones. The Obama administration counts all military-age males in a strike zone as combatants, rendering them to ‘bare life’ existence as a result of their physical proximity to ‘bad’ Islamists. In overlooking the civilian casualties caused by these unilateral strikes, an underlying blunt and macabre calculation is revealed: that civilian lives in ‘war on terror’ battlefields are worth less than American civilian and military lives.
Paradoxically, in its dehumanization of the bad Islamist other, it seems that the US is contributing to the very threat that it seeks to reduce, as demonstrated in recent studies by experts on Yemen, showing that the number of Al Qaeda adherents has increased exponentially in that country in recent years as a direct result of these policies.
Structural openings and legal forms of resistance
Unfortunately, many structural obstacles remain in place that limit the potential for effective change to the ‘war on terror’ associated discourses and policies. The imaginative hold of US exceptionalism on state identity formation and its dependence upon the existence of a defective ‘other’ in need of assimilation, transformation, or elimination, combined with the material power of special interests, such as the pro-Israel lobby and the military-industrial-complex, merely reinforces the aggressive side of this identity.
Despite the dynamic nature of US power and its ability to adapt and respond to new forms of resistance, an undeniable space has been created in which counter-hegemonic practices and discourses have already taken hold. One of the most important amongst these counter-hegemonic practices are the legal forms of resistance emanating from those individuals that have been the objects of much of the discourse on political Islam and associated ‘war on terror’ policies and practices. Included here are the numerous civil and criminal cases being filed in multiple jurisdictions against state actors responsible for the human rights violations entailed by these policies.
Exemplary of these is the case brought against former British Foreign Secretary Jack Straw and the former head of MI6 for their complicity with the US and Libyan governments in the rendition, torture and detention without trial of two Libyan citizens, Hakim Belhaj and Sami al-Saadi. Also included here are the cases brought in front of the European Court for Human Rights (ECtHR) by various individuals who have found their rights suspended in European jurisdictions as a result of having been rendered to the ‘bare life’ category.
For example, the case of British citizen Syed Talha Ahsan who appealed to the ECtHR in April 2012 together with four other men against their extradition from Britain to the US to face terrorism charges. They argued that the conditions they would face if extradited to the US, including the possibility of life without parole in a ‘supermax’ prison, and the likelihood of being subjected to a controversial regime of solitary confinement not used in the UK, would constitute torture or inhuman and degrading treatment, in violation of Article 3 of the European Convention on Human Rights (ECtHR).
This case was ultimately unsuccessful for a variety of factors, including what was most likely reluctance on the part of the judges to set a precedent blocking extradition to US maximum-security prisons. Ian Patel has also pointed out the relevance of ‘strained UK‐EU relations, superpower interests, and an ideological struggle against figures seen to embody ‘the Islamic terrorist’ – a struggle which has, in this instance, liquidated Ahsan’s covenanted’ Article 3 protections.
However, the recent case won by German citizen Khaled el-Masri against the Former Yugoslav Republic of Macedonia demonstrates that the ECtHR may still be a site for redressing rights violations in cases where state actors claim national security protections. In this case, the court ruled in el-Masri’s favour, stating that the plaintiff ‘had been subjected to torture, unlawful detention and other abuses in connection with the CIA's ‘extraordinary rendition’ programme.’ Furthermore, it concluded that the ‘Macedonian authorities knew or ought to have known...that there was a real risk that the applicant [el-Masri] would be subjected to treatment contrary to Article 3 of the Convention should he be transferred into US custody.’
This judgement stands in stark contrast to the fate of el-Masri’s US litigation. In 2006, his case was dismissed by a district court on state security privilege grounds, a decision affirmed by the appellate court later that year. The US Supreme Court subsequently declined to hear the appeal, ending El-Masri’s options for litigation in the United States.
Furthermore, the recent ruling in Italy by the Court of Cassation, upholding the convictions of 23 Americans in the abduction of an Egyptian terror suspect from a Milan street shows that even if US courts prove unwilling to take on rendition cases on the grounds that ‘going forward would reveal state secrets’ , courts in other countries may. In praising the ruling, Milan Prosecutor Armando Spataro, one of Italy's top anti-terrorism magistrates who shaped the prosecution, claimed the ruling was tantamount to finding extraordinary rendition ‘incompatible with democracy.’
These cases highlight the importance of jurisdictional pluralism to this legal resistance, which, as national security legal scholar Jonathan Hafetz points out, is a means to ‘provide other avenues for remedying human rights violations when one nation's courts refuse to prevent impunity’. The recent report by the Open Society Foundation, ‘Globalizing Torture,’ which lifts the lid on the extensive web of ‘war on terror’ covert activities, including torture, abuse and illegal renditions carried out by the CIA with the support of as many as 54 other states, may increase the chances of locating more amenable jurisdictions in the future.
Increased attention to the rights violations entailed in the Obama administration’s drone program has also led to the establishment of a UN inquiry examining the impact of drone strikes on civilian populations in five countries, which could be of potential use for future cases filed by drone strike victims. There has also been an attempt by a British citizen to litigate against the UK for its role in providing intelligence for the US drone campaign in Pakistan.
It remains to be seen how these counter-hegemonic legal practices, accompanied by serious structural challenges to US power, will impact upon the future direction taken by the ‘war on terror’. One can only hope it does not take another four decades before the injustices suffered by the latest victims of the discursive 'othering' on which US foreign policy has for so long been predicated, are also fully recognised.