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The laws of war and the state of the American exception

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Abstract

This article examines the US response to the 9/11 terrorist attacks using Carl Schmitt's concept of the exception. It argues that the Bush administration's response is consistent with Schmitt's view, which argued that US policy continued the historical practice of drawing lines that separated ‘civilisation’ from zones of exception where the normal laws governing warfare did not apply. This suggests that the state of exception declared after 9/11 is not contingent on the rise and fall of the terrorist threat, rather it is the latest manifestation of ‘global linear thinking’ and therefore a permanent feature of American hegemony. However, the article does not accept this pessimistic conclusion. US policy since 9/11 fits squarely with a Schmittian explanation only because conservative nationalists have used the war on terror to help reconstruct a sense of American ‘exceptionalism’. An alternative reading of how American liberalism should respond to terrorism can be found in the manner in which the Bush administration's policy was rejected by the US Supreme Court.

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1 G.Agamben, State of Exception (Chicago, IL.: University of Chicago Press, 2005); Nehal Bhuta‘A Global State of Exception? The US and World Order’, Constellations, 10 (2003) pp. 271–91; Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’, European Journal of International Law, 16 (2005), pp. 613–35; Frédéric Mégret, ‘War? Legal Semantics and the Move to Violence’, European Journal of International Law, 13 (2002), pp. 361–99; Louiza Odysseos and Fabio Petito (eds), The International Political Thought of Carl Schmitt. Terror, liberal war and the crisis of global order (London and New York: Routledge, 2007); William Rasch, ‘Human Rights as Geopolitics. Carl Schmitt and the Legal Form of American Supremecy’, Cultural Critique, 54 (2003); Sara E. Davies, ‘International law and the state of exception’ and Richard Devetak, ‘Failures, rogues and terrorists. States of exception and North/South divide’; in Alex Bellamy, Roland Bleiker, Sara Davies and Richard Devetak (eds), Security and the War on Terror (New York: Routledge, 2008) pp. 71–92, pp. 125–41.

2 William E. Scheuerman, ‘International Law as Historical Myth’, Constellations, 11 (2004),pp. 537–50; and ‘Carl Schmitt and the Road to Abu Ghraib’, Constellations, 13 (2006), pp. 109–23.

3 Stanford Levinson, ‘Torture in Iraq and the rule of law in America’, Daedulus, 133 (2004), pp. 7–9; see also ‘Constitutional Norms in a State of Permanent Emergency’, Georgia Law Review, 40 (2006) p. 706; and ‘Preserving Constitutional Norms in Times of Permanent Emergencies’, Constellations, 13 (2006) p. 59. On the nature of Schmitt's support for the Nazi regime see Joseph W. Bendersky, ‘Carl Schmitt at Nuremberg’, Telos, 72 (1987), pp. 91–7.

4 Carl Schmitt (translation and introduction by George Schwab), Political Theology. Four Chapters on the Concept of Sovereignty (Chicago and London: University of Chicago Press, 1985). For excellent summaries see Oren Gross, ‘The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the “Norm-Exception” Dichotomy’, Cardozo Law Review, 21 (1999–2000), pp. 1825–68; Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis. Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006), pp. 162–70.

5 Carl Schmitt, (translation, introduction, and notes by George Schwab), The Concept of the Political (Chicago: University of Chicago Press, 1996).

6 Agamben, State of Exception, p. 39.

7 Schmitt draws the distinction between ‘commissarial’ (or constitutional) and ‘sovereign’ dictators. The former which Schmitt focuses in The Dictatorship finds expression in Roman and indeed liberal writings. It is for instance consistent with Locke's theory of prerogative power. It ‘can only be justified and legitimated [however], if it is directed at re-establishing or defending the existing order.’ Gross, ‘The Normless and Exceptionless’, p. 1825. The latter is associated with ‘unlimited authority, which means the suspension of the entire existing order.’ Schmitt, Political Theology p. 12. Here the exception becomes the norm rather than being subservient to the norm. Gross, ‘The Normless and Exceptionless’, pp. 1840–1.

8 Carl Schmitt (translated and annotated by G.L.Ulmen), The Nomos of the Earth in International Law of the Jus Publicum Europaeum (New York: Telos Press Publishing, 2003); Louiza Odysseos and Fabio Petito ‘Introduction: The international political thought of Carl Schmitt’, in Odysseos and Petito (eds), The International Political Thought, p. 2.

9 For an analysis of contemporary liberal internationalism /cosmopolitanism that adopts the Schmittian view see William Rasch, ‘A Just War? Or Just a War?: Schmitt, Habermas, and the Cosmopolitan Orthodoxy’, Cardoza Law Review, 21 (1999–2000) pp. 1665–84; and Louiza Odysseo and Fabio Petito, ‘Crossing the Line? Carl Schmitt and the ‘spaceless universalism’ of cosmopolitanism and the War on Terror’, in Odysseos and Petito (eds), The International Political Thought, pp. 124–43.

10 Max Boot, ‘Neocons’, Foreign Policy, 140 (2004), pp. 20–8.

11 Steven Simon and Daniel Benjamin, ‘America and the New Terrorism’, Survival, 42 (2000),pp. 59–60.

12 Ruth Wedgwood, ‘The Law of War: How Osama Slipped Away’, National Interest, 66 (2001/2),pp. 69–73; ‘Al-Qaeda, Terrorism, and Military Commissions’, The American Journal of International Law, 96 (2002), pp. 328–37; see also John Yoo, War By Other Means. An Insider's Account of the War on Terror (New York: Atlantic Monthly Press, 2006), p. 3.

13 Harold Honju Koh, ‘The Case Against Military Commissions’, The American Journal of International Law, 96 (2002), p. 337.

14 For the view that this was the perception of policymakers see Yoo, War By Other Means, pp. 1–4, for an example of those opposing this interpretation see Bruce Ackerman, Before the Next Attack. Preserving Civil Liberties in an Age of Terrorism (New Haven and London: Yale University Press, 2006).

15 Gross, ‘The Normless and Exceptionless’, p. 1842. The exception resides in those areas where the norm breaks down and loses its ‘immanent validity’. Schmitt, Political Theology, p. 13.

16 S.J.Res. 23 Joint Resolution to authorise the use of US Armed Forces against those responsible for the recent attacks launched against the US, http://www.law.cornell.edu/background/warpower/sj23.pdf accessed on 14 September 2001; Californian Congresswoman Barbara Lee was the only person to vote against the Resolution on the grounds that it granted the President a ‘blank check’. Barbara Lee, ‘Why I opposed the resolution to authorize force’, San Francisco Chronicle, 23 September 2001.

17 Agamben, State of Exception, p. 39.

18 President George W. Bush, ‘Military Order – Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terror’, http://www.law.cornell.edu/background/warpower/fr1665.pdf accessed on 13 November 2001.

19 For an excellent and accessible review of the issues see Eun Young Choi, ‘Veritas, Not Vengeance: An Examination of the Evidentiary Rules for Military Commissions in the War Against Terror’, Harvard Civil Rights – Civil Liberties Law Review, 42 (2007), pp. 139–89. For a flavour of the debate at the time see the contributions of Daryl A. Mundis, Ruth Wedgwood, Harold Hongju Koh, Joan Fitzpatrick and Michael J. Matheson in The American Journal of International Law, 96 (2002),pp. 320–58.

20 Memo 11, ‘Humane Treatment of Al-Qaeda and Taliban Detainees, from President George Bush to the Vice-President et al.’, 7 February 2002, in Karen J. Greenberg, and Joshua L.Dratel (eds), The Torture papers. The Road to Abu Ghraib (Cambridge: Cambridge University Press, 2005), p. 134.

21 For evidence of the State Department's resistance see Memo 8, Draft Decision Memorandum for the President on the Applicability of the Geneva Convention to the Conflict in Afghanistan, Memorandum to Counsel to the President, Assistant to the President for National Security Affairs, from Colin L. Powell, 26 January 2002; and Memo 10, Comments on Your Paper on the Geneva Convention, from William H. Taft, IV to Counsel to the President, 2 February 2002, in Greenberg and Dratel, The Torture Papers, pp. 122–5 and pp. 129–33.

22 This list was changed by the 1977 Treaty Additional Protocol I so that lawful combatants merely had to carry arms openly at the point of attack (Article 44) and belong to a command structure that was sufficiently defined to distinguish them from the common criminal (Article 43). For reasons given below, however, the US did not ratify the Protocol and Bush administration lawyers thus considered US forces to be bound only by the 1949 Convention.

23 On the status of the Taliban see note 29.

24 On the source of the unlawful belligerency charge see the exchange between Kevin Jon Heller and the author in Social Sciences in War: Defending Hamdan, UCL Symposium Proceedings, 26 September – 3 October, 2008 at http://www.terraplexic.org/

25 Memo 7, Memorandum for the President, Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al-Qaeda and the Taliban, from Alberto R. Gonzales, 25 January 2002, in Greenberg and Dratel (eds), The Torture Papers, p. 119. On the interrogation orders made possible by this new paradigm and the link to the abuses at Abu Ghraib and Guantánamo see Seymour Hersch, Chain of Command. The Road from 9/11 to Abu Ghraib, (London: Allen Lane, 2005).

26 Memo 4, Application of Treaties and Laws to Al-Qaeda and Taliban Detainees. Memorandum (Draft) for William J. Haynes II General Counsel Department of Defense from John Yoo Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, 9 January 2002', in Greenberg and Dratel (eds), The Torture Papers, p. 38. This opinion was written, as the reference suggests, as a draft memo to the Department of Defense. The same argument appeared in the actual memo which is now published as Memo 6, Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense, 22 January 2002, from Jay S. Bybee Assistant Attorney General, 22 January 2002, available in Greenberg and Dratel (eds), The Torture Papers, p. 81.

27 Memo 4, Application of Treaties and Laws, 48. Memo 6, Memorandum for Alberto Gonzalez,p. 207.

28 For example, Marco Sassòli, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’, Journal of International Criminal Justice, 2 (2004), p. 102; George H. Aldrich, ‘The Taliban, Al-Qaeda, and the Determination of Illegal Combatants’, American Journal of International Law, 96 (2002), pp. 894–5.

29 Memo 4, Application of Treaties and Laws to Al-Qaeda and Taliban Detainees', in Greenberg and Dratel (eds), The Torture Papers, p. 50 emphasis added; see also pp. 58–9 and Memo 7. Memorandum for the President, Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al-Qaeda and the Taliban, from Alberto R. Gonzales 25 January 2002, available in Greenberg and Dratel, The Torture Papers, p. 118. For additional commentary see David D. Caron, ‘If Afghanistan has failed, Then Afghanistan is Dead: “Failed States” and the Inappropriate Substitution of Legal Conclusion for Political Description’, in Karen J. Greenberg (ed.), The Torture Debate in America (Cambridge University Press, 2006), pp. 214–22.

30 Aldrich, ‘The Taliban’, p. 895.

31 Memo 4, Application of Treaties and Laws to Al-Qaeda and Taliban Detainees', in Greenberg and Dratel (eds), The Torture Papers, pp. 61–2. As noted, the criteria set out in Article 4 of the third Geneva Convention were amended by the 1977 first Geneva Protocol, an agreement the Reagan administration did not sign because in its eyes it gave rights to non-state groups (notably the PLO) that had neither the will nor the capacity to be able to fulfil the obligations demanded by the laws of war. See in particular the work of Douglas Feith who also served in the Defense Department at the time of the 9/11 attacks. Douglas J. Feith, ‘Protocol I: Moving Humanitarian Law Backwards’, Akron Law Review, 19 (1986) pp. 531–5; and Douglas J. Feith, ‘Law in the Service of Terror – The Strange Case of the Additional Protocol’, National Interest, 1 (1985), pp. 36–47. In this respect the Reagan administration continued to deny the political dimension of national liberation movements by using ‘crime’ and ‘police’ rhetoric. To suggest that non-state groups like the PLO were fighting a ‘war’ rather than committing criminal acts of terrorism was considered by Feith and others to elevate their status and inadvertently legitimise their claim to statehood. This was also a concern of the UK government, which conditioned its ratification of Protocol I on the understanding ‘that the term “armed conflict” of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.’ Quoted by James G. Stewart, ‘The Military Commissions Act's Inconsistency with the Geneva Conventions: An Overview’, Journal of International Criminal Justice, 5 (2007), p. 28. For discussion of how the rhetoric of crime can work to ‘erase’ the political cause of certain groups see de Benoist, ‘Global terrorism and the state of permanent exception’, pp. 77–83.

32 Edward Keene, Beyond the Anarchical Society. Grotius, Colonialism and Order in World Politics, (Cambridge: Cambridge University Press, 2002), pp. 97–119.

33 For elaboration see Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford: Oxford University Press, 1992). Indeed, the DoJ drew directly from the US experience of fighting the Indian Wars in order to justify the use of military commissions to prosecute terrorist suspects. See Patrick F. Philbin, Deputy Assistant Attorney General, ‘Legality of the use of Military Commissions’, Memorandum Opinion For the Counsel of the President,pp. 23–30, at http://www.usdoj.gov/olc/2001/pub-millcommfinal.pdf accessed on 6 November 2001.

34 Schmitt, The Nomos, pp. 94–5.

35 Alex Bellamy, Just Wars: from Cicero to Iraq (Cambridge : Polity, 2006), p. 75.

36 Schmitt, The Nomos pp. 126–47. On the brutality of colonial warfare in North America, its connection to Europe's holy wars and to the creation of the US Rangers and their activities on the frontier see John Grenier, The First Way of War. American War Making on the Frontier, 1607–1814 (Cambridge: Cambridge University Press, 2004).

37 While this equates to the colonial practices of the European powers Schmitt makes clear that the new American line is not about land appropriation, rather it is about identifying liberal states that maintained the kind of ‘open door’ policy that American capital could exploit. Schmitt, The Nomos p. 292. This account of neo-imperialism is why the conservative Schmitt had many left-wing admirers. See G.L.Ulmen, ‘American Imperialism and International Law: Carl Schmitt on the US in World Affairs’, Telos, 72 (1987), pp. 43–71; Chris Brown, ‘From humanized war to humanitarian intervention. Carl Schmitt's critique of the Just War tradition’, in Odysseos and Petito (eds), The International Political Thought, p. 62; Scheuerman, ‘International Law as Historical Myth’, p. 537.

38 Schmitt, The Nomos, pp. 287–8.

39 Ibid., pp. 259–80.

40 Bendersky, ‘Carl Schmitt at Nuremberg’, pp. 91–7.

41 Schmitt, The Nomos, pp. 320–2.

42 Because 18th and 19th century Europe accepted other sovereigns as justus hosti, ‘ it was possible to establish numerous legal institutions. In particular is was possible to view prisoners of war and the vanquished no longer as objects of punishment or vengeance …’. Schmitt, The Nomos, p. 309. Chris Brown describes this as a ‘a devil's bargain: accept that violence is simply a part of human existence – forget the attempt to require that violence be justified – and in exchange you will have a world where violence will actually be more controlled and less dangerous to human well being that it would otherwise would be’. Chris Brown, ‘From humanized war to humanitarian intervention’, p. 66.

43 On the ‘politically defensive and even nostalgic’ tome of The Nomos see Scheuerman, ‘Carl Schmitt’, p. 109.

44 Scheuerman, ‘International Law as Historical Myth’, p. 538.

45 Ibid., p. 544; see also Koskenniemi, ‘International Law as Political Theology’, p. 495.

46 Koskenniemi, ‘International Law as Political Theology’, p. 495.

47 Ibid., p. 499; see also Brown, ‘From humanized war to humanitarian intervention’, p. 58, pp. 63–4.

48 Scheuerman, ‘International Law as Historical Myth’, p. 545.

49 Ibid., pp. 545–6.

50 Ibid., p. 547.

51 This kind of thinking can be found in Douglas Feith's rejection of Protocol I (see note 32). See also Jeremy Rabkin, ‘The Politics of the Geneva Conventions: Disturbing Background to the ICC debate’, Virginia Journal of International Law, 44 (2003), pp. 169–205.

52 For an excellent elaboration of this point see Michael Williams, ‘Morgenthau Now: Neoconservatism, National Greatness and Realism’, in Michael Williams (ed.), Realism Reconsidered. The Legacy of Hans Morgenthau in International Relations (Oxford: Oxford University Press, 2007), pp. 216–40.

53 Koskenniemi, ‘International Law as Political Theology’, p. 506, first emphasis added.

54 Hamdi v. Rumsfeld 542 US 507 (2004) and Rasul v. Bush 542 US 466 (2004). In the latter case, the constitutional right of Habeas Corpus was extended to non-US citizens in a foreign jurisdiction (Cuba), which, as noted below, is the subject of much debate. The court dismissed a third case Rumsfeld v. Padilla 542 US 426 (2004) on a technicality. However, following the Hamdi ruling the government transferred Padilla, who like Hamdi was an American citizen, to a normal federal custody to stand trial on criminal charges of conspiracy in a federal court. He was found guilty on August 16 2007.

55 Michael C. Dorf, ‘The Orwellian Military Commissions Act of 2006’, Journal of International Criminal Justice, 5 (2007), p. 14. In March 2009, the Court refused to rule on this question after the Obama administration decided to prosecute Ali Saleh Kahlah al-Marri through civilian courts rather than continue to hold him without charge as an unlawful combatant.

56 Hamdan v. Rumsfeld 548 US (2006).

57 Opinion of Justice Stevens, in Hamdan v. Rumsfeld, 548 US (2006), p. 66.

58 Geneva Conventions I-IV, Article 3.

59 Detainee Treatment Act of 2005, at http://jurist.law.pitt.edu/gazette/2005/12/detainee-treatment-act-of-2005-white.php accessed on 31 December 2005.

60 The US Military Commissions Act of 2006, at http://www.loc.gov/rr/frd/Military_Law/MC_Act-2006.html accessed on 17 October 2006. In Section 6b, which was seemingly written to satisfy the Hamdan criteria, the act defined ‘Grave Breaches of Common Article 3’. However, in an effort to avoid accountability under Geneva, the act invented a ‘novel and unfounded’ category of breaches which excluded ‘the provisions of common article 3 that well-documented practices at Guantánamo unquestionably violate, namely the denial of a right to a fair trial and the prohibition against outrages upon personal dignity, in particular humiliating and degrading treatment.’ Stewart, ‘The Military Commissions Act's Inconsistency’, p. 33. Moreover section 7 stated that ‘no court, justice, or judge shall have jurisdiction to hear or consider any other action against the US or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained […] as an enemy combatant or is awaiting such determination.’ To guard against the charge that this is illegal under international law, the Section 6 a (2) stated that ‘[n]o foreign or international source of law shall supply a basis for a rule of decision in the courts of the US in interpreting the prohibitions enumerated in subsection (d) of such section 2441 [that is, the War Crimes Act as amended by the MCA]’. Thus ‘despite its repeated invocations of the Geneva Conventions the MCA in fact authorises the US to breach those Conventions, because it authorises the opening of a gap between the US-sourced only interpretation of the Conventions and the consensus view of the international community[…].As Orwell might have said, “violation is compliance”.’ Dorf, ‘The Orwellian’, p. 18.

61 On 22 January 2009, President Obama stated the intention to close down the detention facility at Guantánamo Bay. He also set up a task force to study the broader issues, which, despite the headlines, could still maintain elements of the Bush administration's detention policy. Dana Priest, ‘Bush's ‘War’ On Terror Comes to a Sudden End’, Washington Post, 23 January 2009.

62 The MCA was opposed by roughly a third of Senators and Representatives, with a majority of Democrats voting against it. While this legislation kept the detention facilities at Guantánamo Bay open it does require that all military interrogations be performed according the Code of Military Justice and that statements elicited by cruel, inhuman and degrading treatment be treated as inadmissible in the military commissions.

63 Concurring Opinion of Justice Kennedy, Rasul v. Bush (2004).

64 Dissenting Opinion of Justice Scalia, in Rasul v. Bush, 2004.

65 For further discussion of the US policy towards the International Criminal Court see the author's Defending the Society of States. Why America Opposes the International Criminal Court and its vision of World Society (Oxford: Oxford University Press, 2007).

* Part of the research for this paper was conducted while I was a visiting academic at the School of Political Science and International Studies (POLSIS), University of Queensland. I would like to thank all the staff at POLSIS for providing an excellent working environment and especially those who provided encouraging feedback when the paper was presented at the Departmental Seminar, including Tim Dunne who was also visiting POLSIS at that time. I would also like to thank the anonymous reviewers and Maureen Ramsay for their feedback, as well as Stephanie Carvin, who made it possible for me to present this paper at the 2007 BISA conference in Cambridge.

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