The Counterrevolution
Page 21
During his campaign, Trump identified an active minority in the United States that effectively included not only all Muslims, but also undocumented residents, especially those with criminal records, and large segments of the African American community, especially those who have participated in Black Lives Matter protests. Muslims in America, he said, need to inform on each other, and the influx of any more Muslims must be stopped. As for Mexicans, Trump equated them with rapists: “When Mexico sends its people, they’re not sending their best […] They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.” He vowed to deport eleven million undocumented residents, and then said he would start with the two to three million undocumented persons with criminal records. He also vowed to put back in place law-and-order measures that target minorities. He lent all his support to even more NSA surveillance. He called for targeted surveillance of mosques in America.13
Trump warned Americans explicitly that “we’re going to have to do things that we never did before.” In an interview during the campaign, he emphasized: “Some people are going to be upset about it… Certain things will be done that we never thought would happen in this country in terms of information and learning about the enemy,” he said. “We’re going to have to do things that were frankly unthinkable a year ago.”14
In effect, Trump threatened to up the ante on each and every counterinsurgency maxim: more information awareness, harsher treatment of minorities, and more tweets and misinformation for the people. He did everything possible to delegitimize the mainstream media, to spin factless claims, and to help circulate false information. He embraced the language of brutality against a phantom minority. He adopted the political logic, if not the explicit theory, of the counterinsurgency paradigm. Donald Trump even reenacted, in the most vulgar terms, the link between brutality and masculinity discussed earlier in the context of the hidden functions of terror. Trump infamously was caught on tape making derogatory and violent comments about women, saying, “When you’re a star, they let you do it. You can do anything. Grab them by the pussy. You can do anything.” In another incident, he blended misogyny with homophobia when he mocked Arianna Huffington, saying that she was “unattractive both inside and out. I fully understand why her former husband left her for a man—he made a good decision.”15 The traditional masculine tropes laced his campaign rhetoric.
Despite all this, over 62 million people voted for Donald Trump, resulting in his Electoral College victory. And it was by no means an unusual election. Voter turnout in 2016 was typical for this country. About 60.2 percent of the approximately 231 million eligible voters turned out to vote, representing about 139 million votes case. That number is consonant with historical turnout in this country, almost squarely between voter turnout in 2012 (58.6 percent) and in 2008 (61.6 percent), but still above most presidential election year turnouts since 1972.16 In all categories of white voters, Trump prevailed.
Embracing The Counterrevolution, Donald Trump was knowingly elected president, which painfully brings to mind Hannah Arendt’s haunting words from The Origins of Totalitarianism: “It is quite obvious that mass support for totalitarianism comes neither from ignorance nor from brainwashing.”17
The totalization and domestication of counterinsurgency in the United States today—at a time when there is not even a semblance of a domestic insurgency—deserves its new label: The Counterrevolution. It is all the more worrisome because it appears to be without end, as the legal historian Samuel Moyn warns us.18 We are headed not, as Kant would have it, toward perpetual peace, but instead, sounding the refrain of Nietzsche’s eternal return, toward an endless state of counterinsurgency warfare.
Now that it’s clear that The Counterrevolution has arrived and is likely only to grow more brutal, we need to examine it more closely to understand fully how it functions and how to resist it.
12
A STATE OF LEGALITY
MANY COMMENTATORS ARGUE THAT WE NOW LIVE, IN THE United States and in the West more broadly, in a “state of exception” characterized by suspended legality. In this view, our political leaders have placed a temporary hold on the rule of law, with the tacit understanding that they will resume their adherence to liberal legal values when the political situation stabilizes. Some commentators go further, arguing that we have now entered a “permanent state of exception.”
This view, however, misperceives one particular tactic of counterinsurgency—namely, the state of emergency—for the broader rationality of our new political regime. It fails to capture the larger ambition of our new mode of governing. The fact is, our government does everything possible to legalize its counterinsurgency measures and to place them solidly within the rule of law—through endless consultations with government lawyers, hypertechnical legal arguments, and lengthy legal memos. The idea is not to put law on hold, not even temporarily. It is not to create an exception, literally or figuratively. On the contrary, the central animating idea is to turn the counterinsurgency model into a fully legal strategy. So, the governing paradigm is not one of exceptionality, but of counterinsurgency and legality.
To be sure, legal devices such as states of emergency are actively deployed and play an important role in the counterinsurgency model. Crises and emergencies justify modern-warfare practices. President George W. Bush declared a formal state of emergency right after 9/11, and President François Hollande triggered a formal state of emergency under French law after the November 2015 terrorist attacks in Paris. Less formally, but more metaphorically, the US Homeland Security Advisory System, with its orange high risk and red severe risk levels of terrorist threat; the “if you see something, say something” public campaigns; the recorded warnings in subway and train stations; the militarized patrols with fully automatic machine guns at train stations or at airports—all of these function importantly as emergency measures.
But it is important to distinguish these specific exceptional measures from the larger, fully coherent rationality that constitutes The Counterrevolution. The logic of that framework is not one of rules and exception, whether permanent or temporary. It is not a binary logic. It is, instead, a model that legalizes counterinsurgency practices, legitimates them, and thereby produces a fully coherent legal system—all grounded in notions of legality. The counterinsurgency paradigm is fully ensconced in a web of legal advisory memos, Office of Legal Counsel briefs, quasi and real judicial review, and top lawyers. Rather than resting on a binary logic of norm and exception, it depends on rendering all these “exceptional tactics” fully legal. It rests not on exceptional illegality, but rather on recurring forms of what we might call legalizations, or even legalities—a term I will come back to.
One could, of course, contend that a fully legalized Counterrevolution produces a “permanent state of exception,” but that has little meaning—since the exception requires the rule—and it fails to capture the overarching logic of our new governing paradigm. The logic today is based on a model of counterinsurgency warfare with, at its heart, the resolution of that central tension between brutality and legality. The counterrevolutionary model has resolved the inherited tension and legalized the brutality. It is vital that we properly identify and understand the logic of this new paradigm; otherwise, it will be impossible to resist it.
The term “state of exception” is wide-ranging and covers a variety of different legal mechanisms including, among others, a state of emergency or a state of siege, the imposition of martial law, cases of necessity, and national security or raison d’État justifications. What all these different legal forms have in common is that they represent a rupture from the more ordinary legal process, a temporary lifting of the conventional liberal paradigm. And they generally require, in a liberal democracy, the suspension of certain legal rules.
So, for instance, just three days after 9/11, President George W. Bush proclaimed a na
tional emergency, issuing Proclamation 7463 titled “Declaration of National Emergency by Reason of Certain Terrorist Attacks.” The proclamation authorized, under the National Emergencies Act, the calling up of reserves to active duty and it made easier bureaucratic tasks regarding the deployment of armed forces personnel.1 Similarly, President François Hollande of France immediately called a state of emergency following the Paris attacks of November 13, 2015, thereby lifting ordinary warrant restrictions on police searches, seizures, and arrests. Whereas ordinarily searches of homes or house arrest would require a prior magistrate’s approval, in the state of emergency these practices can be ordered by the minister of the interior. The French Assembly extended the state of emergency for months on end, doing so again after the Nice attack on July 14, 2016. France remained in a state of emergency for almost two years, until President Emmanuel Macron integrated the exceptional measures into ordinary common law.
The argument that we have entered a new political paradigm characterized by the state of exception, though, goes beyond these strictly legal devices. The argument suggests that our form of governing itself has been fundamentally altered and rendered exceptional—outside the realm of ordinary law. As applied to the post–9/11 era, the argument is that we have begun to accept, as a nation, that the special circumstances of the threat presented by nonstate networks of enemies such as Al Qaeda, the Taliban, other terrorist organizations, and now ISIS, demand a temporary interruption of legal normality. This interruption would allow the United States and its allies to deploy exceptional military and political measures in order to reestablish order and, eventually, return to the ordinary rule of law.
Now there is, of course, some evidence to support this view. As noted earlier, a few months after President Bush declared a limited national emergency, he created a new category of “enemy combatants” not recognized by law, declaring on February 7, 2002, that “the war against terrorism ushers in a new paradigm.”2 This extralegal category of “enemy combatants” surely suggested something important, as does the idea of a new paradigm. But, I would argue, it is far broader and far-reaching than the mere framework of the exception. That would be too reductionist, too simplistic. Rather, President Bush’s notion of a “new paradigm” prefigured something more complex, coherent, and systematic. It presaged the larger paradigm of modern warfare and The Counterrevolution.
Carl Schmitt, the German political theorist, is most closely associated with the notion of the state of exception, and his writings have most influenced both the defenders and the critics of the idea. Schmitt himself was a leading advocate of a strong executive and of the assertion of emergency measures to respond to crisis situations. Schmitt argued for and justified President von Hindenburg’s assertion of emergency powers under Article 48 of the Weimar Constitution in September 1930—an exercise of emergency powers that triggered the immediate election of the Nazi party to the Reichstag. After Schmitt joined the Nazi party in April 1933, he defended the legality of the purge of July 30, 1934—what is known as the Night of the Long Knives, when Hitler had hundreds of his political opponents murdered.3 Drawing on his defense of emergency powers, as well as his writings on the concept of “the political” and on dictatorship, Schmitt famously—or infamously—declared: “The Führer protects the law from its worst abuse when in the moment of danger he, by his domain as Führer and as the supreme judicial authority, directly creates law.”4
In his 1922 book Political Theology, Schmitt defined the sovereign as “he who decides on the exception,”5 placing the ability to call a state of exception as the sine qua non of sovereign political power. The seeds of Schmitt’s defense of the executive assertion of emergency powers could be found in his penchant for dictatorship and his antagonistic conception of the political—that is, his view that the defining element of the political relation is discerning friends from enemies and doing whatever is necessary in order to both advance one’s political interests and simultaneously defend oneself against one’s enemies.6 The critical distinction between friend and foe—or more precisely, the ability to keep that opposition in view, to fully appreciate it, to be guided by it—stands at the very heart of Schmitt’s defense of emergency powers. It would lead him, for instance, to drive out his rival and colleague, the legal theorist Hans Kelsen, from the University of Cologne and to write in the pages of Cologne’s Nazi paper of new regulations forbidding non-Aryans from certain occupations: “We are once again learning to discriminate. Above all, we are learning to discriminate between friend and foe.”7
In his writings, especially State of Exception published in 2003, the philosopher Giorgio Agamben traced a genealogy of the concept of the state of exception, linking it back to sovereign power as “the dominant paradigm of government in contemporary politics,” but also relating it to many other concepts of necessity. The variants of the wide-ranging notion of exception all relate to the Latin maxim necessitas legem non habet (“necessity has no law”); but they do so in a somewhat confusing or imprecise manner. To help disentangle them, Agamben linked the German terms “state of exception” (Ausnahmezustand) and “state of necessity” (Notstand) to the French and Italian legal categories of “emergency decrees” and “real” or “fictitious state of siege,” and the American and English categories of “martial law” or “emergency powers,” as well as the suspension of the American constitution’s provision of habeas corpus. By means of this genealogy, Agamben emphasized that “the state of exception has today reached its maximum worldwide deployment.” His analysis then focused on the question of the legal regulation of the state of exception—whether the latter can ever be said to be subject to rules, given that it, by definition, is outside the rule of law. “If the state of exception’s characteristic property is a (total or partial) suspension of the juridical order,” he asks, “how can such a suspension still be contained within it?”8
Agamben underscored the pressing and urgent nature of the problem. He emphasized “the urgency of the state of exception ‘in which we live.’” And he characterized the military order signed by President George W. Bush on November 13, 2001 (allowing for indefinite detention of suspected terrorists), and the USA PATRIOT Act as examples of a state of exception in which the detained enemy combatants were placed in the same “legal situation of the Jews in the Nazi Lager [“camps”], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.”9 In an earlier volume of Homo Sacer, Agamben interpreted the use of camps—such as Guantánamo Bay—and torture as an instance of the logic of the state of exception. Agamben suggested that this state of exception traced much further back in time, far before 9/11, and that it may well define the long-term history of Western civilization. For Agamben, this history revealed a paradox: the model of the exception had become the rule, and we now live in a permanent state of exception that forms the very foundation of Western political thought.
Schmitt and Agamben’s writings have unleashed an outpouring of interest in the state of exception, and many contemporary thinkers have embraced the idea that it constitutes our new paradigm of governing post 9/11. The concept has practically come to dominate debates among contemporary political theorists on both sides of the question. “The state of exception has become permanent and general,” Antonio Negri and Michael Hardt wrote in their book Multitude in 2005: “the exception has become the rule, pervading both foreign relations and the homeland.”10 Already in 2002, Judith Butler characterized the Guantánamo detention camp as “the exception,” arguing that “when [Secretary of Defense Donald] Rumsfeld says that this is no regular situation, […] he implies that the extraordinary character of terror justifies the suspension of law in the very act of responding to terror.”11 Similarly, Slavoj Žižek warned in 2002 that “we are entering a time in which a state of peace can at the same time be a state of emergency.” Žižek too characterized the rhetoric of liberal-democratic societies post 9/11 as “that of a global emergency in the fight against
terrorism, legitimizing more and more suspensions of legal and other rights.” Žižek introduced some ambiguity to the notion of emergency, but nevertheless remained closest to Schmitt and the idea of emergency powers: “Our pluralistic and tolerant liberal democracies remain deeply Schmittean: they continue to rely on political Einbildungskraft to provide them with the appropriate figure to render visible the invisible Enemy.”12
Other critics have also used the concept of the state of exception as a way to challenge features of our current political condition—at times, very productively. The Guantánamo lawyer and social critic Thomas Anthony Durkin, who has had a front-row seat on the war on terror as a pro bono lawyer for several detainees and other defendants charged with domestic terrorism, also embraced the exception as the right framework for our times. In Durkin’s view, we are building a two-tiered system of justice in federal court based on a state-of-exception logic that goes back to the wars on drugs and crime, and now on terror. There has been a gradual increase in the use of emergency powers, under the guise of predator dangerousness, starting with the Bail Reform Act of 1984, which for the first time acknowledged pretrial detention in the federal system. This emerging two-tiered system, Durkin argued, is designed for intelligence gathering, originally about crime and drugs but now filtered through national security—and it is becoming a permanent fixture of federal procedure. Similarly, the sociologist Kim Lane Scheppele argued, “Since 9/11, the Bush administration has repeatedly invoked its ability to make exceptions to normal legality to cope with the terroristic threat in domestic policy through increasing invocation of military rationales for its actions.” She identified the practices of preventive detention, the new guidelines for surveillance and investigation for terrorism-related activities, and the Bush administration’s attempt to bypass Congress and the courts by “trying to bring the war on terrorism entirely within the executive branch,” as departures from normal operating procedures in domestic policy.13