The Counterrevolution

by Bernard E. Harcourt

  At the other end of the political spectrum, those who have come to the defense of practices such as enhanced interrogations, indefinite detention, Guantánamo Bay, or unbounded executive power, such as legal scholars Eric Posner and Adrian Vermeule, also drew extensively on the writings of Carl Schmitt and his notions of political exceptionalism. John Yoo, professor at Berkeley and author of some of the torture memos, similarly justified the aggrandizement of executive power by invoking notions of exception and turned to the idea of the “emergency situation” to justify practices that others described as torture.14

  And in between these poles, some liberal thinkers as well embraced the concept of the state of exception, though they mainly sought to rein it in. Legal and political theorist Bruce Ackerman, for instance, called for a constitutional regime that “allows short-term emergency measures, but draws the line against permanent restrictions.” Ackerman noted, “The state of emergency enables the government to take extraordinary measures in its life-and-death struggle for survival.” He argued that “we must rescue the concept” of emergency powers “from fascist thinkers like Carl Schmitt” and “view the state of emergency as a crucial tool enabling public reassurance in the short term without creating long-run damage to foundational commitments to freedom and the rule of law.”15

  The state of exception has dominated the theoretical conversation and has seeped into the broader public conversation as well. Fareed Zakaria, the popular host of CNN’s GPS and a public intellectual in his own right, stressed in the Washington Post in 2012: “For 11 years, the United States has been operating under emergency wartime powers granted under the 2001 Authorization for Use of Military Force.” He added, “That is a longer period than the country spent fighting the Civil War, World War I and World War II combined.”16 Scott Horton, who writes for Harper’s Magazine, argued in an article titled “State of Exception: Bush’s War on the Rule of Law,” that “the experience of America in the period after 9/11 bears some noteworthy parallels to the Schmitt-Benjamin dialogue” and that “the American executive in this period [made] clever use of Schmittian theories.”17 Horton was referring to the fact that the critic Walter Benjamin, in his own essay On the Concept of History in 1940, attempted to recuperate the notion of the state of emergency as a means for emancipatory revolution. He too, like Agamben, argued that “the ‘state of emergency’ in which we live is not the exception but the rule,” but explicitly argued against Schmitt that the exception be used against Nazism: “It is our task to bring about a real state of emergency” in “the struggle against fascism,” Benjamin wrote. This Benjaminian reversal can be felt in the work of Ackerman. Others as well have deployed the concept of the exception as the main framework to analyze our contemporary times.18

  Interpreted through the lens of the state of exception, the extreme practices of total surveillance, drone strikes including against American citizens, and torture and solitary confinement must be justified (or not) as exceptional but necessary means at this particular historical juncture. They are proper (or not) because of their necessary but temporary nature. But they are expected eventually to recede, allowing the United States to return to more ordinary practices of liberal democracy.19 Agamben’s idea of a permanent state of exception pushes this further, but simultaneously undermines the defining element of the exception, since it becomes the rule. For the most part, though, the state of exception is presented as aberrational but temporary. The lifting of ordinary warrant requirements for police searches, seizures, or house arrest in France, for instance, is justified as a necessary departure from the rule of law, essential to reestablishing order and ordinary civil liberties—or alternatively, as measures that will eventually integrate the rule of law. Most often, the practices represent a temporary exception to liberal democratic rule-of-law norms. It is unclear, in this view, how long the war on terrorism, on Al Qaeda, on ISIS, and more generally on violent extremism will need to extend before the country can return to normal; but what justifies the exceptional use of NSA surveillance, solitary confinement, or remote targeted assassinations is the fact that these are provisional measures necessary to end a state of siege that began with the 9/11 attacks. The long-term practices of the United States, in this view, are consonant with liberal legalism and the rule of law. And those who theoretically embrace but practically oppose the state-of-exception framework essentially disagree with the claim of necessity, or argue that any temporary window should close more quickly, if not immediately.

  The problem with the state-of-exception view is that it mistakes tactics for the overarching logic of our new paradigm of governing and, in the process, fails to see the broader framework of The Counterrevolution. The state-of-exception framework rests on an illusory dichotomy between rule and exception, a myth that idealizes and reifies the rule of law. The point is, the use of torture at CIA black sites and the bulk collection of American telephony metadata were not exceptions to the rule of law, but were rendered fully legalized and regulated practices—firmly embedded in a web of legal memos, preauthorized formalities, and judicial or quasi-judicial oversight. In this sense, hardly anything that occurred was outside or exceptional to the law, or could not be brought back in. The Counterrevolution, unlike the state of exception, does not function on a binary logic of rule and exception, but on a fully coherent systematic logic of counterinsurgency that is pervasive, expansive, and permanent. It does not have limits or boundaries. It does not exist in a space outside the rule of law. It is all encompassing, systematic, and legalized.

  Of course, the rhetoric of “exception” is extremely useful to The Counterrevolution. “States of emergency” are often deployed to seize control over a crisis and to accelerate the three prongs of counterinsurgency. In France, the state of emergency allowed for perquisitions—“searches and seizures”—without advance judicial approval or oversight. It allowed for administrative house arrest decreed by the minister of the interior alone. It almost made possible the stripping of the nationality of dual nationals suspected of terrorism. The state of emergency was a rapid and effective way to recalibrate relations of power. In the United States as well, President Bush declared an emergency in order to mobilize police powers and resources. During the Algerian conflict, the French declared martial law in the Casbah, which allowed for military control of entry and exit, as well as extensive searches and seizures. Following the war in Iraq, the entire country of Iraq was under an effective state of emergency and a protectorate government. And one could easily imagine a full-blown state of emergency being called in the United States today within the counterinsurgency paradigm.

  But it is important to distinguish strategic maneuvers like these from the overall paradigm of governing. For the overarching logic and dominant theoretical rationality of The Counterrevolution is not that of the state of exception. To the contrary, the counterinsurgency-warfare paradigm forms a coherent, permanent, and systematic approach that now applies at all times. As Galula wrote, counterinsurgency theory is the “basic tenet of the exercise of political power” and it applies “in any situation, whatever the cause,” a phrase repeated in General Petraeus’s field manual.20

  The dichotomy of law versus exception simply does not hold today. All of the strategies of The Counterrevolution are formalized and legalized. From the infamous torture memos, to domestic surveillance, to the forty-one-page legal brief permitting the execution of American citizens abroad, everything fits within a legal framework—or is made to fit.

  In his 1973 lectures on what he would call “the punitive society,” Michel Foucault coined a concept that he referred to as “illégalismes.” The term was often translated into English as “illegalities,” but that misses its thrust—namely, that so much of the negotiation of relations of power in society takes the form of pushing the boundaries of law, of playing in a space that is neither clearly legal nor clearly illegal. A better, albeit awkward, translation would be “illegalisms.” The ultimate exercise of power, Foucault argued, is
precisely to transform ambiguities about illegalisms into conduct that is “illegal.” Translating illégalismes as “illegalities” would draw the conclusion prematurely, and miss the struggle that is at the heart of social relations: a play for the line drawing of the law itself. The idea of illegalisms is that the law itself is a struggle, a negotiation, an agonistic combat, a competition over the very question of defining the line of illegality—the line that divides deviations, disorderliness, rule-breaking, rule-interpretation, from illegality and the punitive sanction.

  In those 1973 lectures, Foucault demonstrates how, during the early nineteenth century, social conflict expressed itself through the privileged classes converting popular illegalisms—drinking, carnivals and festivities, pleasure, leisure, debaucheries—into illegalities. Being able to turn legally ambiguous acts into legal violations, Foucault argues, represented the ultimate force of the law. In a detailed historical analysis, Foucault documents a political shift in the treatment of illegalisms.

  During the ancien régime, Foucault argues, the popular and the privileged classes worked together to evade royal regulations, fees, and impositions. Illegalisms were widespread throughout the eighteenth century and well distributed across the different strata of society: there were not only popular illegalisms—the illegalisms of the popular classes—but illegalisms of merchants and men of commerce, even illegalisms of the privileged and powerful—of the lieutenant de police, of the commissaires, etc. And for the most part, the privileged tolerated popular illegalisms because they also practiced their own forms of deviance against the monarchy, and the relationship “worked” in a certain way. They collaborated to get around the administrative rules. For example, in the practices of weavers in the 1750s, even the police and representatives of the local government would participate in illegalisms to evade royal levies. Or in the London ports, workers and local residents would collaborate to circumvent strict laws regulating commerce. The model of law here was that of a fluid medium. “There was a whole interplay between popular illegalisms and the law,” Foucault explains. “It could almost be said that respect for legality was only a strategy in this game of illegalism.”21

  As wealth became increasingly mobile after the French Revolution, new forms of wealth accumulation—of moveable goods, stocks, and supplies as opposed to landed wealth—exposed massive amounts of chattel property to the workers who came in direct contact with this new commercial wealth. The accumulation of wealth began to make popular illegalisms less useful—even dangerous—to the interests of the privileged. The commercial class seized the mechanisms of criminal justice to put an end to these popular illegalisms—not only the depredation of material property and private wealth, but also the “dissipation” of their own time and bodies, of the strength of the workers themselves, of their human capital (dissipation that took precisely the form of absenteeism, or delay, or laziness). The privileged seized the administrative and police apparatus of the late eighteenth century to crack down on popular illegalisms.

  The propertied classes, in this way, took charge of the judicial institutions in order to discipline and to regulate the popular classes through legal enforcement against their illegalisms. They effectively turned popular illegalisms into illegalities, and, in the process, created the notion of the criminal as social enemy—Foucault even talks here of creating an “internal enemy.”22 In doing so, they turned to the penitentiary and the prison-form, which was not so much a model of confinement for violations of a statute so much as imprisonment for irregular behavior. The process of seizing judicial power rested, in this model, on the concept of illegalisms.

  In The Counterrevolution—by contrast to the bourgeois revolutions of the early nineteenth century—the process is turned on its head. Illegalisms and illegalities are inverted. Rather than the privileged turning popular illegalisms into illegalities, the guardians are turning their own illegalisms into legalities. The Counterrevolution, with its total surveillance, detentions, and drone strikes, functions precisely by means of turning the gaps and ambiguities of the law surrounding the right to eavesdrop, the right of self-defense, or even the definition of torture into legally approved practices, or legalities. The strategy here is to paper one’s way into the legal realm through elaborate memorandums and advice letters that justify the use of enhanced interrogation or the assassination of American citizens abroad. This strategy is evident not only in the dozens of legal memos that served to legally justify counterinsurgency excesses, but also in books such as Ganesh Sitaraman’s fascinating The Counterinsurgent’s Constitution: Law in the Age of Small Wars, or Appendix D to General Petraeus’s field manual, “Legal Considerations,” both of which sketch the proper legal framework for counterinsurgency practices.

  The Counterrevolution turns illegalisms into legalities. It smothers potentially problematic situations under a mound of memos and briefs and procedures. It creates legalities through formalism and bureacracy. David Barron’s forty-one-page memorandum justifying the targeted killing of American citizens abroad is the perfect illustration. The memo reads like a law school exam question: all the facts have to be assumed in order to isolate a discrete legal issue that must be narrowly answered. Would the assassination of an American citizen abroad violate Title 18, section 1119 of the US Code? Would it fall within the justification of public authority? Would it violate any other federal prohibitions on murder, or the prohibition against war crimes? Would it violate constitutional due process?

  In a puzzling exercise of legal reasoning qua rationalization, Barron’s memo uses the federal criminal code to imply justifications that are not explicitly articulated there, creating new legal norms for when those now-implied justifications are in fact met. The memo is hyperlegalistic and technical. Its skilled words and phrases are minutely pulled together to justify an outcome and create a “legality.” The memo is the perfect illustration of this legalization process, in all its bureaucratic and judicious glory.

  On the one hand, there is a strict division of responsibilities: the intelligence agencies and the military determine all the facts outside the scope of the legal memorandum. The facts are assumed to be true. Barron’s memo must only decide the narrow legal issues. Everything is compartmentalized. The law is separate from the facts. But the facts, it turns out, are so extreme that they justify the law. Nevertheless, the facts are not reviewed or questioned. They are not disturbed, for fear of disabling them. Each party has its function. The lawyers are just deciding the narrow legal question presented.

  On the other hand, the memo authorizes: it allows the political authority to function within the bounds of the law. It sanitizes the political decision. It cleans the hands of the military and political leaders. It produces legalities. Because of the extreme facts, it even renders the decision to kill morally compelling. It is an act that will save many lives. A justified homicide, one that does not run counter to the legal order. Given the facts, we are almost obligated to kill. If it is going to prevent future deaths, then the targeted assassination here is practically morally required.23

  A few months after Barron wrote his memo, in December 2010, Judge John D. Bates, a federal judge on the US District Court for the District of Columbia, went out of his way to rule that there could be no judicial review of these types of decisions because such decisions are entrusted to the political branch: “There are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.” The case of al-Awlaki, the federal court declared, “squarely presents such a circumstance.”24 The forty-one-page memo had so fully legalized killing US citizens overseas that the drone strikes became judicially unreviewable.

  Law, we know, can serve as a crutch. Robert Cover demonstrated this elegantly in the case of abolitionist judges in the antebellum period who upheld the Fugitive Slave Act of 1850.25 Robert Weisberg showed it well in the context of the death penalty.26 Similarly, in the cont
ext of The Counterrevolution, we have witnessed that legal crutch in painful ways—a lengthy legal memo, intricate, bureaucratized, judicious, that served to cleanse and legalize the political decision to kill a US citizen without trial or due process. A legal undertaking to make possible the unimaginable: to “mark for death” a fellow citizen without the semblance of a trial.

  Any exceptionalism of The Counterrevolution, in this regard, is not that it is prepared to kill a citizen abroad. Many nations are prepared to do that—and have. What is unique and exceptional is the legalistic and procedural dimensions, and the effort we are prepared to expend in order to make these acts justified, defensible, and legal—and to protect our political leaders from the possible consequences of later criminal or human-rights prosecutions. We are even prepared to produce these legalities through notions of the exception—as when the lawyers relied in part on the principle of necessity to justify torture or targeted assassination. Recall that legal counsel at CIA was originally pushing a necessity defense as a potentially “novel” legal defense for officers who engaged in torture.27 They ultimately did not need it because the White House lawyers redefined torture, but it too would have fit within the formal legalistic framework. Anything does, in fact, so long as it renders the counterinsurgency paradigm legal.