I just found out from the publishers that the Wroe and Herbert collection on the Bush Presidency is now out. If anyone is interested I contributed the chapter on foreign policy. Happy to read your thoughts here.
I just found out from the publishers that the Wroe and Herbert collection on the Bush Presidency is now out. If anyone is interested I contributed the chapter on foreign policy. Happy to read your thoughts here.
Nick Vaughan-Williams is to be congratulated for his article ‘The generalised bio-political border? Reconceptualising the limits of sovereign power’, which appears in the latest issue of Review of International Studies. I usually approach articles with ‘biopolitics’ in the title more in hope than expectation. This I know is because I haven’t invested the proper time, but I do hope for the occasionaly breakthrough. This time I was not let down. Vaughan-Williams’ article is important because it is accessible and I shall be revisiting it and his footnotes for further research. There is a lot that will be relevant only to those that have followed literature on Agamben but there is also a clear account of how his thought relates to the war on terror, in particular the camp at Guantanamo Bay and the issue of targeted killings, specifically the de Menezes case. Vaughan-Williams’ contribution is interesting but I have several problems with the use of these cases and what they say about the post-structuralist view of terrorism and the liberal state.
First, Vaughan-Williams offers a clear definition of bare life, which is drawn from the Aristotelian distinction between zoe (natural life) and bios (public or political life). He disabuses us of the idea that bare life is simply natural life. Rather it is ‘something that is actively produced by sovereign power for sovereign power’. It is, he quotes Agamben, ‘a product of the machine and not something that pre-exists’. We’re then told that
“sovereign power depends upon creating and exploiting zones of indistinction in which subjects’ recourse to conventional legal and political protection is curtailed: a technique of governance … is illustrated by the status of detainees held indefinitely in Guantanamo Bay. … Guards who stand watch over the detainees in Guantanamo confront a peculiar form of ‘human life’. Stripped of political and legal status, it bears no resemblance to Aristotle’s conception of man as [a political animal] in the public sphere of bios. Yet, neither does this life in any simple way conform to what the Greeks would have called zoe. Rather, the life confronted by the guards is a life that scrambles these Aristotelian co-ordinates: we no longer have any idea of the classical separation between zoe and bios in this context. It is bare life produced by the sovereign practices of the camp that is caught in a zone of indistinction between zoe and bios: a life that is mute and undifferentiated.”
Now, this is interesting because it potentially maps on to the debate in the international legal literature concerning the detainees’ legal status. The structure of that debate mimics the private/public/zone of indistinction on display here. Thus as a public actor with a recognised right to use violence the detainee should be accorded POW status and be immune from prosecution (unless war crimes were committed) and protected by GCIII. Or, as a private individual the detainee should be protected by human rights law, have access to a lawyer, be able to contest his detention in a court of law and be released if not charged with a crime. What the sovereign power did was to ‘scramble these co-ordinates’, to use Vaughan-Williams’ nice phrase. It took a third category – unlawful combatant – which is a concept of domestic law and applied it to this new kind of borderless conflict as a way of denying a) the private/civilian rights and b) the political/combatant rights of the detainee. The problem with this parallel, however, is that in Vaughan-Williams’ account we’re led to believe that sovereign power sees the detainees as bare life that is ‘mute’. I’m not entirely certain, what this means but it might be a reference to the idea that sovereign power depoliticises bare life by criminalising it. If this is the meaning, then it can only apply to the detainees at Guantanamo Bay in a qualified way. By labelling the detainees as ‘enemy combatants’, the US is recognising their political status – see John Yoo’s Insider Account on this. However, by also criminalising that status the US is reasserting hierarchies of just combatants into the laws of war, thereby reversing Westphalian process that saw combatants as equal (sovereign) before the law. This might be what Vaughan-Williams means, but then that needs to be illustrated with reference to the legal discourse surrounding these cases. This, however, raises a problem for Vaughan-Williams. He cannot engage in this kind of analysis because the sovereign is meant to strip the detainees of ‘political and legal status’. While the concepts of zoe, bare life and bios may promise insight, therefore, they ultimately lead us to miss the fact international law not being suspended, nor is it necessarily dividing the world into zones of civility and exception. Rather it is being adapted in ways that reassert hierarchical conceptions of just war.
Now, in a way this fits with the central argument of the article, which is that the biopolitical order does not rest on inside/outside or territorialised representations of sovereignty and exception. Rather there is a generalised bio-political order.
This concept refers to the global archipelago of zones of indistinction in which sovereign power produces the bare life it needs to sustain and notions of sovereign community. … Thinking in terms of the generalised bio-political border unties an analysis of the activity of sovereign power from the territorial limits of the state and relocate such an analysis in the context of a bio-political field spanning domestic and international space.
To illustrate this, Vaughan-Williams highlights the case of the Jean Charles de Menezes shooting on 22 July 2005. We’re told that the de Menezes shooting was
“an arbitrary decision that did not occur in a particular zone or space designated for exceptional practices. On the contrary, the shooting took place within what is usually considered to be the ‘normal’ juridical-political space of the state. Yet, Menezes, a Brazillian citizen working in the UK, was produced as bare life within the ‘normal’ space: not safeguarded by the rule of law but subjected to the whims of the CO19 who, as temporary sovereign, assessed his description and demeanour, considered his identity to be that of a bomber suspect, and concluded his annihilation would not constitute a crime. In this case, Menezes had effectively been banned from – or rather abandoned by – the law.”
This we are further told gives added ‘credence to Agamben’s otherwise seemingly sensationalist claim that ‘we are all (virtually) homines sacri’.
This is both compelling and problematic. I’ve come to agree with Vaughan-Williams that we should rethink the conception of borders and inside/outside imaginaries are unhelpful. However, I find this depiction of the Menezes incident troubling. Firstly, to say that Menezes was ‘abandoned by the law’ and to suggest the police officers were ‘temporary sovereigns’ making ‘arbitrary decisions’ to kill, is potentially misleading. It certainly understates the pressure that the police were facing at that time. To point this out is not to claim that the police action in this case was justified or that any policy of targeted killing can be justified. It does however highlight the importance of situation and urge sensitivity to the difficulties faced in counter-terrorism operation. But perhaps my more significant question is what is the practical implication of Vaughan-Williams’ analysis? It suggests to me that an absolute commitment to human rights law is the antidote to biopolitical power. Is this right? If so it is reassuring (I think), but at the same time I’m wondering what exactly it is that biopolitics contributes to this otherwise familiar conclusion.
While I am reassured by the liberal message that flows from this article, the realist in me is still somewhat troubled. As noted, I think Vaughan-Williams underestimates the pressures faced by the liberal state in July 2005 and this possibly stems from a criticism of all things sovereign. The realist of course acknowledges that there are moments when the law has to be suspended in order to save it. The targeted killing based on the ‘one last rescue shot principle’ (see Melzer’s recent book on this) is one of those moments. As perhaps was the police raid at Forest Gate, which Vaughan-Williams also writes about. His conclusion that ‘…the home itself offers little refuge from the sovereign operation’ will seem naive to those familiar with the challenges of policing any form of ‘domestic’ violence, as well as to those fighting asymmetric warfare. The danger of the latter of course is that the sovereign expands the notion of combatant so wide that the ‘home’ and the ‘civilian’ are targetable. But being aware of this danger does not reduce the difficulties of responding to the irregular combatant who politicises the private by launching his attack from a house while dressed in civilian clothes.
Of course, the sovereign does overreact to security threats. But the litmus test for the liberal state is what happens in retrospect. Are the actions taken by the state in the name of security brushed under the carpet or is there a full accounting when human rights have been violated? Menezes would only have been abandoned by the law had we not have had an inquiry and ‘compensation’ (as ridiculous as that may sound). Other victims of targeted killing such as McCann and his accomplices may have been reduced to ‘bare life’ had the European Court not found that the UK government was in breach of their right to life when it shot them on Gibraltar. The implication of this is that we need to look much more closely at the arguments that are used to justify the use of sovereign power. A subject may very well be reduced to ‘bare life’ if, as with some of the arguments from the Bush administration’s Department of Justice, individuals are permanently excluded from legal protections because of their identity (i.e. al Qaeda, Taliban). This however is very different from those arguments that justify the use of sovereign force in situations of extreme insecurity. Where the latter exception is recognised in human rights law the former is not. It is the failure to consider this counterweight to sovereign power that I think undermines Vaughan-Williams account of the cases he considers and the broader conclusions for global governance. As I noted above, the implications are that we should redouble our commitment to liberalism and it commitment to the international human rights and international humanitarian regimes. Because it seems to point in this direction without explicitly acknowledging it, I’m still left wondering what contribution biopolitics to the consideration of security. More to the point, if we ignore the way in which human rights law contests the existence of the camp, then there is a danger that we will better understand the way power turns us into homines sacri without being able to do anything about it.
This week in the International Law and Ethics in the War on Terror class we discussed issues surrounding targeted killing. Students may wish to follow up those discussions by reading this post from Kevin Jon Heller at Opinio Juris. It deals with the question of perfidy as well as the use of private companies.
By Dominika Švarc
Finding an alternative to the military commissions system for prosecution of certain terrorist suspects was one of the strongest lines in Barack Obama’s presidential campaign and it remained a top priority in the first moments of his presidency. With an executive order of 22 January 2009, he suspended all the ongoing military commissions trials pending the final decision regarding their future.
Ten months later, the infamous military commissions are still alive and kicking. Reluctant to create a whole new legal system for prosecution of terrorist suspects (for debates on alternatives, especially the national security courts, see e.g. here, here, and here), the Obama administration chose to amend the old one even though it has often been criticized as broken and beyond repair.
The new Military Commissions Act of 2009 is part of the National Defense Authorization Act for Fiscal Year 2010 that was signed into law by President Obama on 28 October. Without doubt, the new legislation includes important improvements of some of the fundamental due-process flaws plaguing the military commissions act passed by Congress in 2006. However, experts and human rights organizations (among them Human Rights Watch and ACLU) have already warned that the revised system still fails to meet the standards required in the US constitution and international law.
Among the most significant improvements of the old military commissions legislation is the absolute prohibition of evidence obtained by torture or “cruel, inhuman or degrading treatment” (§ 948r). In addition, only “voluntary” statements (with some exceptions) are admissible in commission proceedings (§ 948r(c)(B)). The combination of these two standards importantly raises the bar for procedural reliability and admissibility of evidence in comparison with the previous system. Other improvements include a requirement of experienced capital defense attorneys in death penalty cases, more resources for defence counsel and greater access to witnesses and evidence for defendants.
But many disturbing features remain. The element most strikingly reflecting the previous administration’s war-model approach to the fight against terrorism is the scope of military commissions’ personal jurisdiction. Subject to trial by military commissions are any “unprivileged enemy belligerents” (§ 948c), a term well established in the law of armed conflict (LOAC), as opposed to the “alien unlawful combatants” used in the old legislation). However, while the term itself may be consistent with the LOAC, its content is not. It includes not only those individuals who have been actively “engaged in hostilities against the US or its coalition partners” (§ 948a(7)(A)), but also those, who have “purposefully and materially supported hostilities against the US or its coalition partners” (§ 948a(7)(B)). In effect, the language of “material support” goes beyond the traditional understanding of the concept of “belligerents” to include persons who would be classified as “civilians” in terms of LOAC for the purpose of applying the principles of civilian protections, including immunity from military detention and prosecution by military tribunals (see a related discussion here). Consequently, the act still allows for military prosecution of terrorist suspects who are technically civilians under the LOAC and should be tried before regular civilian courts.
The definition also continues to specifically include members of al Qaeda (§ 948a(7)(C)), but by requiring a more explicit war nexus, the new act (at least on paper) no longer permits prosecution of terrorist suspects picked up outside of any armed conflict. Using the same words as the ICC statute, the act has limited the military commissions’ material jurisdiction to offenses “committed in the context of and associated with armed conflict” (§ 950p).
At the same time, and despite the Obama administration’s explicit opposition, the new legislation includes “material support for terrorism” (§ 950t(25)) on the list of offences prosecutable by military commissions. Again, such militarization of a regular civilian crime of material support has no clear basis in the LOAC and international criminal law, and is problematic from the US domestic law perspective as well (see Deborah Pearlstein’s take on that at Opinio Juris).
Not only does the new legislation maintain the war-model approach to the fight against terrorism, it also seems to endorse the idea that the “war on terror” is a perpetual one. Despite the administration’s specific request, the Congress didn’t include a sunset clause to set a time limit on military commission trials as a matter of law. They might thus well outlive Guantánamo (and the current administration), and apply to other terrorist suspects in the future.
It is worrying that the Obama administration seems neither ready to truly abandon the “terrible legacy of Guantánamo”, nor able to secure real improvements of the old system on the Capitol Hill. Applying the war paradigm apparently continues to be “exceptionally” necessary. Yet, it is hard to accept the alleged inevitability of a parallel substandard system in light of the benefits of prosecution via the US federal courts, which have already proven to be a perfectly effective avenue for prosecuting many terrorist suspects (145 cases to date) while balancing due-process protections with the requirements of national security.
Hopefully, the administration will at least in practice follow its signalled intention to pursue the federal courts option wherever possible. Half-hearted (though welcome) modifications of an inherently flawed military commissions system that still falls short of true justice will not help Obama to shake off the aura of illegitimacy created by his predecessor.
By Jason Ralph
Last week saw the release of yet another torture memo from the OLC. This one was written by Steven Bradbury and is dated July 20, 2007. Having read it alongside the Bybee August 2002 and the Bradbury May 2005 memo, I think we can identify separate arguments and possibly even a gradual shift from what sociologist Stanley Cohen called ‘interpretive denial’ (“what happened is really something else”) to ‘implicatory denial’ (“what happened can be rationalized”). For example, in 2002 Bybee famously argued that torture was not torture (it was enhanced interrogation) because the proposed techniques did not involve severe pain or prolonged mental harm. In the 2005 memo Bradbury in effect argued that EITs were not cruel, inhumane or degrading if they took place outside the United States. Bradbury argued in that memo that Art.16 of the Convention Against Torture (CAT) is inapplicable because the US interpreted this aspect of CAT in terms of the 5, 8th and 14th Amendment to the US Constitution and that is not applicable extraterritorially. The July 2007 memo, however, deals with the application of theDetainee Treatment Act, which states that “no individual in the custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment. “ This forces the CIA to abide by Article 16 CAT. “Taken as a whole”, Bradbury states, “the DTA imposes a statutory requirement that the United States abide by the substantive standards applicable to the US under its reservation to Article 16 of the CAT in the treatment of detainees regardless of location or citizenship.”
This is where the shift from ‘interpretive’ to ‘implicatory’ denial takes place. That is the OLC stops arguing that the actions do not constitute torture and starts acknowledging that the action may be cruel but it can nonetheless be rationalized according to some kind of situational and consequential ethics. The steps to this argument are as follows. Bradbury notes that only the 5th Amendment is applicable here as the 14th amendment does not apply to government action and the 8th amendment applies only in the case of a conviction. On the 5th Amendment, Bradbury recalls that ‘substantive due process protects against interrogation practices that “shock the conscience”.’ This is taken from the famous Rochin v California case in which California police forced a suspect to vomit so he would give up the evidence he had swallowed. Taking this standard, Bradbury then argues that the current case of CIA interrogation
“requires a balancing of interests that leads to a more flexible standard than the inquiry into coercion and voluntariness that accompanies the introduction of statements at a criminal trial, and the governmental interests at stake may vary with context. The Supreme Court has long distinguished the government interest in ordinary law enforcement from the more compelling interest in safeguarding national security …. In evaluating the techniques in question, Supreme Court precedent therefore requires us to analyze the circumstances underlying the CIA Interrogation program – limited to High Value terrorist detainees who possess intelligence critical to the global war on terror – and this clearly is not a context that has arisen under existing federal court precedent. Thus the test is whether conduct is arbitrary in a constitutional sense or whether it is proportionate to the government interest involved.”
The memo then argues that the techniques are not as brutal as those that have shocked the conscience of US courts and that the government interest in this case – i.e. national security rather than law enforcement – is much greater than courts have considered in the past. On this basis, the techniques proposed by the CIA – and it should be noted that it is only asking about 6 on the lightest techniques not 10 techniques as was the case in 2002 – are thought not to shock the conscience. The CIA can therefore go ahead.
We know from the exchange of letters between the CIA and OLC in November of 2007 that these EITs were being used in the interrogation of a HVD that month.
What I find interesting about this memo when it is read in the context of the previous OLC memos is that it was nearly six years after the September 11 attacks before the OLC grounded its reasoning in situational or consequential ethics. Most theoretical discussion of the torture question starts at this point, which is understandable of course because it is the point where the moral questions are most interesting. But in practice it appears that the anti-torture norm did have a hold on the US and delayed the moment when those employed to justify the actions were willing to acknowledge that CIA actions were cruel. So, prior to 2007 and the consideration of what the DTA meant, the DoJ sought ways of reconciling CIA practices with the anti-torture norm, which included denying that the actions constituted torture (2002) and denying that the norm was universal in scope (2005).
This argument also demonstrates yet again, the importance of framing the 9/11 attacks as acts of ‘war’ rather than ‘law enforcement’. The implication here is clear – because this is a national security matter the government can engage in actions that would have otherwise shock the conscience.
Finally, there’s an interesting footnote to this, which offers a new take on Kagan’s famous quip that Americans are Hobbesians from Mars and the Europeans are Kantians from Venus. In its discussion on decisions by foreign tribunals, it examines the decision of ECHR in Ireland v. United Kingdom,  which held that interrogation methods used against the IRA were ‘inhuman and degrading’. It then notes that ‘the ECHR made no inquiry into whether any governmental interest might have reasonably justified the conduct at issue in that case – which is the legal standard the DTA requires when evaluating the CIA’s proposed interrogation techniques. The lack of such an inquiry reflects the fact that the ECHR’s definition of “inhuman and degrading treatment” bears little resemblance to the US constitutional principles incorporated under the DTA.’ (p.40). Earlier in the memo (p.31), it describes a European-type position in terms of the ‘catergorical imperative’, without referencing Kant. In fact, it cites the US Supreme Court in US v. Salerno (1987) to claim that because the Due Process Clause ‘lays down [no] … categorical imperative’, the Court has, ‘repeatedly held that the Government’s regulatory interests in community safety can, in appropriate circumstance, outweigh an individual’s liberty interests.’
Is the west divided by a consequentialist – deontological faultline?
By Jason Ralph
Last week’s release of the 7 May 2004 report of the CIA Inspector General gives reason to revisit the question of imminence which I have raised in previous posts. There is a section in the report on the effectiveness of the EITs used by the CIA. It gives what is now a familiar line that the EITs produced lots of actionable intelligence, which led to the capture of other AQ operatives. This reinforces the evidence Bush gave in his September 6, 2006 speech. See also Cheney’s latest contribution. Yet, as I suggested in previous posts, this not enough to justify the use of EITs given that the advice received from the OLC was that the EITs were to be used in situations where the CIA knew an attack was imminent. The report does talk about specific threats – in Karachi, against Heathrow, a west coast 9/11, gas stations in NYC – but it does not provide specific evidence that the intelligence gathered from the EITs was actionable in a way that it prevented these attacks. Indeed, on p.88 Helgerson states that his “review did not uncover any evidence that these plots were imminent”. The report then swiftly moves on to state that the DCI had stated in an interview that the intelligence derived from EITs was valuable. Did anyone else think of Mandy Rice Davies at this point?
By Jason Ralph
Last week’s developments give some indication of how the US may seek to resolve the dilemma of whether and who to prosecute. The dilemma of course is that if a prosecutor targets CIA interrogators they will claim that they sought legal advice and the OLC told them that their interrogation practices were lawful. But if the prosecutor targets OLC lawyers they will simply argue they misinterpreted the law but were not partof any conspiracy to break it. The first point to note about last week is that the Attorney General appointed the prosecutor John Durham to investigate the CIA. Durham had been looking at what happened to the videotapes of the Zubaydah interrogation but now his remit is wider. The second point, is that the May 7 2004 report by the CIA Inspector General, John Helgerson, points to the use of interrogation techniques that were not approved by the OLC. This is picked up by the OLC lawyer, Jack Goldsmith in a 27 May 2004 letter to Scott Muller, General Counsel of the CIA. Goldsmith may have been trying to protect OLC colleagues when he notes that the OLC’s clearance of the 10 enhanced interrogation techniques in the August 2002 memo to Rizzo, “depended on a number of factual assumptions as well as limitations concerning how those techniques would be applied. … Our inititial review of the IGs report raises the possibility that, at least in some instances and particularly in early in the program, the actual practice may not have been congruent with all of these assumptions and limitations.”
This may be the case and it suggests prosecutions of those CIA interrogators who went beyond what the OLC said was legal. But does that mean what the OLC said was legal is in fact legal? The OIG report also notes that the evidence which the OLC used to draw its conclusion that the 10 EITs were legal was in fact flawed. This is reference to the SERE training program, which the OLC August 2002 opinion used to conclude that the EIT would not cause prolonged mental harm. Relying on this evidence has been widely attacked and subsequent OLC lawyers, Goldsmith, Bradbury backed away from it while continuing to approve EITs.
The problem with only prosecuting those CIA interrogators that went beyond the OLC advice is that it does not address the fact that the OLC advice gives a get out for actions that many continue to see as illegal. There is I believe an internal DoJ report on the ethics of the August 2002 opinions, which hasn’t yet been released. It would seem to me, however, that while the prosecution of interrogators who went beyond legal advice is right, to say nothing about the advice that went beyond the law is wrong. Questions remain.