The Counterrevolution

by Bernard E. Harcourt

  In her fascinating and meticulous account of the legal battles over the “war on terror” in the Bush and Obama administrations, the historian Karen Greenberg argues that most of the Bush and many of the Obama administration decisions ultimately deviated from what we would consider to be our due-process tradition. We have not “hew[ed] to the rule of law and the constitutional principles that it embodies,” Greenberg writes. Instead, we have allowed those constitutional principles to be watered down and muddied. “The institutions of justice, caught up in the war on terror,” Greenberg concludes, “have gone rogue.”28

  What the history reveals, though, is not so much that we departed from the rule of law, but that the lawyers in the presidential administrations and in Congress did everything in their power to make the counterinsurgency strategies conform to law, and in the process made the law conform to counterinsurgency. Their legalizations reshaped due process by means of the very rules of due process.

  The first example that Greenberg provides is illustrative. When President Obama took office, his new attorney general, Eric Holder, announced that he was determined to try Khalid Sheikh Mohammed and the other four 9/11 coconspirators in federal court in New York. Holder was adamant that they should be tried in a civil courtroom, rather than be subject to a special military commission. This would have been significant. It would have amounted to a fundamental shift in the way that the US government dealt with the 9/11 conspirators—through a criminal law, rather than war paradigm. But Congress got in the way. In the annual authorization for the armed services, the National Defense Authorization Act (NDAA), Congress inserted a few paragraphs that expressly prohibited the use of Defense Department money to “transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee.”29 Congress passed that version of the NDAA in December 2011. Obama signed it the following month.30

  One might argue that the prohibition on trying Mohammed in federal court does not conform to our ideal of due process and the rule of law.31 I find the prohibition appalling and agree entirely with Holder that Congress took “one of the nation’s most tested counterterrorism tools off the table” and in the process prevented the government from “adhering to the bedrock traditions and values of our laws.”32 But President Obama nevertheless signed the legislation, making it the law of the land. In effect, the rule of law triumphed: a properly passed bill, signed by the president of the United States, became law and has been followed. None of this violates the rule of law or transgresses the boundaries of legal liberalism. Instead, the change was rendered “legal.” If this feels circular, it is because it is: there is a constant feedback effect in play here. The counterinsurgency practices were rendered legal, and simultaneously justice was made to conform to the counterinsurgency paradigm. The result of the feedback loop was constantly new and evolving meanings of due process. And however rogue they may feel, they had gone through the correct procedural steps of due process to render them fully lawful and fully compliant with the rule of law.

  Legality, like terror, serves many masters. It serves to distance the commander-in-chief from the act of killing. It functions as well to strip decision-makers of responsibility by legally justifying, if not morally mandating, their actions. This de-responsibilization purifies the political decisions. It cleans everyone’s hands. The lawyers certainly never bear the weight of their decision. They are just applying law, technically. The intelligence operatives are absolved as well, because the legal decision is taken elsewhere. The drones and missiles do all the killing: unmanned, and remotely guided. It is almost as if, at the post, everyone thinks that they are the one with the blank in the rifle: everyone is allowed to believe that they are not responsible. Just doing their little task that does not amount to much. Meanwhile the US Supreme Court perpetuates these myths with its quasi-immunity doctrines and hyperformalism. So, for instance, the militarized police officer cannot be held responsible for excessive force or violating civil rights because there was no prior decision from the Supreme Court explicitly covering that situation—it is a Catch–22 that serves to shield the police. Here too, the hyperlegalism and proceduralism allow the Supreme Court itself to keep distance from issues of excessive use of force that are wreaking havoc across the country.

  This de-responsibilization is what makes possible such a seamless transition from a Bush administration to an Obama administration, and to a Trump administration—despite their policy differences. Charlie Savage, the national security columnist at the New York Times, persuasively argued that the contradictions between President Obama’s rhetoric during the 2008 campaign about scaling back the Bush administration’s counterterrorism program and Obama’s retention of most aspects of that program while in office could only be reconciled by understanding the Obama administration as lawyerly through and through.33 Obama not only retained the substance of Bush’s counterterrorism measures, but also added memos to legalize other practices.

  Karen Greenberg noted that the Bush memos stand “for the right to implement ‘Counter-Resistance Strategies.’” One such memo, dated October 25, 2002, and authored by James T. Hill, specifically stated that the Bush administration had been “trying to identify counterresistant techniques that we can lawfully employ.”34 There is a close connection between counterinsurgency theory and these “counterresistance techniques.” Brutal methods became necessary, in this rationale, because of the strategic actions of the resisting minority. The legal memos themselves stated as much. For example, Diane E. Beaver, a staff judge advocate at Guantánamo Bay, specifically noted that the traditional methods commonly approved by the Geneva Conventions were not working on the detainees “because detainees have been able to communicate among themselves and debrief each other about their respective interrogations.” Beaver stressed that their “interrogation resistance strategies have become more sophisticated.”35 Their resistance required the development and use of counterresistance techniques. And it eventually justified the legalities of The Counterrevolution. As Ganesh Sitaraman notes, law itself is “inevitably an instrument of counterinsurgency—as are military, political, economic, social, and other operations.”36

  Legal gaps and ambiguities can be generative. A breach between different legal or political logics can give birth to new paradigms. In his lectures, “Abnormal,” in 1975, Foucault explored how the clash between the juridical power to punish and the psychiatric thirst for knowledge produced new medical diagnoses that then did work. He showed how the psychiatric category of monomania in the nineteenth century—a mental disease that effectively corresponded to the occurrence of a violent crime without any motive or explanation—served to fill a gap in the law and to justify punishment. In his 1978 lecture on the invention of the notion of dangerousness in French psychiatry, Foucault showed how the idea of future dangerousness emerged from the gaps and tensions in nineteenth-century law.37

  There are surely gaps here too in The Counterrevolution—tensions between rule-boundedness on the one hand and a violent warfare model on the other. Those tensions give momentum to the pendulum swings of brutality that are then resolved by bureaucratic legal memos. Today, these legal documents justify the act of killing one’s own fellow citizen without the semblance of a trial or adjudication. The single greatest violation of due process: that, indeed, would require a well-crafted legal memo by our most talented lawyers. Killing others in war is far easier. It is natural. But killing one’s own without a trial is a different matter. Marking one’s own for death is radical. In Great Britain and the United States, it is precisely what motivated habeas corpus and gave birth to the due process clause. At the Office of Legal Counsel, in our best and brightest lawyers’ most able hands, it is precisely what was turned into a legality. There is, in the end, no need to govern through the exception when The Counterrevolution has been fully legalized.

  13

  A NEW SYSTEM

  NEITHER EXCEPTIONAL N
OR TEMPORARY, THE COUNTERREVOLUTION is also not piecemeal or chaotic. It is not makeshift, but systematic and fully coherent. The counterinsurgency approach draws on a rigorous method, what is known as “systems analysis,” and as a result, The Counterrevolution is characterized by a tight logic that rationally harmonizes seemingly discordant strategies in pursuit of a precise objective.

  The manifestations of counterinsurgency often appear at first glance improvised, somewhat disorganized, not properly thought-out—for example, the acts of torture during the Bush years or the rollout of the Muslim ban in the first months of the Trump presidency. But what may appear at first as random tactics at odds with each other are in truth a coherent set of policies filtered through a systems-analytic approach. The Counterrevolution, in effect, is a fully integrated, coordinated, and systematic approach to governing.

  The RAND Corporation played a seminal role in the development of counterinsurgency practices in the United States and championed for decades—and still does—a systems-analytic approach that has come to dominate military strategy. Under its influence, The Counterrevolution has evolved into a logical and coherent system that regulates and adjusts itself, a fully reasoned and comprehensive approach. Understanding systems analysis and its underlying logic is crucial to understanding the systemic nature of The Counterrevolution—and to resisting it.

  The systems-analytic approach grew out of Operations Research (OR), a field developed during World War II as a way to extend quantitative analysis to military decision-making with the goal of optimizing the operation of weapons systems. Famous early applications of OR included studies of the placement of aircraft-detection radar devices to optimize antiaircraft effectiveness and of the use of depth-charge explosions to maximize antisubmarine efficacy in the early phases of World War II.1 The “distinctive approach” of OR, according to a report by the Operational Research Society of Great Britain in the early 1960s, was “to develop a scientific model of the system, incorporating measurements of factors such as change and risk, with which to predict and compare the outcomes of alternative decisions, strategies or controls.”2

  Eventually, OR would apply the same mathematical algorithms and models to larger management problems, such as the determination of efficient transportation delivery routes or warehouse stock control. From this larger perspective, OR was understood, again in the words of the Operational Research Society of Great Britain, as “the attack of modern science on complex problems arising in the direction and management of large systems of men, machines, materials and money in industry, business, government and defense… The purpose is to help management determine its policy and actions scientifically.”3 The question it tackled was how to optimize efficiency where the measure of efficiency is clearly defined, or, as Edward S. Quade of the RAND Corporation explained in 1966, how “to increase the efficiency of a man-machine system in a situation where it is clear what ‘more efficient’ means.”4

  During the 1950s, Quade, Alain Enthoven, Charles Hitch, and others at the RAND Corporation extended this method of analysis from the narrow field of OR to defense strategy more broadly—from deciding, for instance, the optimal altitude for a bombing mission to determining broader nuclear engagement policies. The broader application would become known as systems analysis or SA. Systems analysis was often confused with OR, but it was distinct in several regards. OR tended to have more elaborate mathematical models and solved lower-level problems; in systems analysis, by contrast, the pure mathematical computation was generally applied only to subparts of the overall problem. Moreover, SA took on larger strategic questions that implicated choices between major policy options. In this sense, SA was, from its inception, in the words of one study, “less quantitative in method and more oriented toward the analysis of broad strategic and policy questions, […] particularly […] seeking to clarify choice under conditions of great uncertainty.”5

  The emerging logic of systems analysis was simple. It involved an analytic decision-making method that privileged quantification, modeling, statistical analysis, and a cost-benefit approach. The decision-maker first had to identify a particular problem to address within a particular social sphere—or “system”—and to have a clear idea of the system’s objectives. For instance, a policy maker involved in the administration of public housing might identify crime as a problem, and might set as a goal affordable crime reduction, given that the overall objective of a public-housing system is to provide safe and affordable housing. With a clear objective in mind, the decision-maker would then set the proper criteria to evaluate different promising policy alternatives. So, for instance, in our example, the evaluation metrics might involve crime rates and the cost associated with any policy. Then, the systems-analytic process would proceed in five steps:

  Step one, the input, was the set of promising policy alternatives, each of which could possibly advance the objectives of the system. Each alternative policy was then filtered in step two through a set of models to assess, for example, its maintenance costs, manpower requirements, communication capabilities, etc. This produced in step three each policy’s level of effectiveness and cost, which could then be compared in step four using a metric, “the criterion.” This comparison of each promising policy alternative along the chosen criterion would produce, as the output, the relative rank of each policy compared to the others. The output, at step five, would be the correct ordinal ranking of the policy alternatives.6

  This five-step process was depicted in a RAND model, Figure 1 of Edward Quade’s RAND Report P-3322 on “Systems Analysis Techniques for Planning-Programming-Budgeting” from March 1966. Quade’s graphics captured well the five key steps of the analytic decision-making method called systems analysis developed in the 1950s and 1960s.

  In order to perfect this method, the operation could be reiterated, testing for sensitivity, questioning assumptions, reexamining objectives, exploring new alternatives, and tweaking the model again and again. This reiterative process could also be visualized in Quade’s report at Figure 2.7

  Presenting this model to federal bureaucrats in 1966, Quade offered this concise definition of systems analysis:

  A systems analysis is an analytic study designed to help a decision maker identify a preferred choice among possible alternatives. It is characterized by a systematic and rational approach, with assumptions made explicit, objectives and criteria clearly defined, and alternative courses of action compared in the light of their possible consequences. An effort is made to use quantitative methods but computers are not essential. What is essential is a model that enables expert intuition and judgment to be applied efficiently.8

  As this definition made clear, there were two meanings of the term system in systems analysis: first, there was the idea that the world is made up of systems, with internal objectives, that need to be analyzed separately from each other in order to maximize their efficiency. Along this first meaning, the analysis would focus on a particular figurative or metaphorical system—such as a weapons system, a social system, or, in the case of early counterinsurgency, a colonial system. Second, there was the notion of systematicity that involved a particular type of method—one that began by collecting a set of promising alternatives, constructing a model, and using a defined criterion. This method involved the systematic comparative analysis of different policies, using quantification, algorithms, and metrics. Though they could be distinguished, these two meanings were both integral parts of the systems-analytic approach: the central idea was to systematically select and compare a set of policies to improve a system, and to choose the one that would maximize the functionality of that system.

  Figure 1 from Edward Quade’s RAND Report P-3322.

  Figure 2 from Edward Quade’s RAND Report P-3322.

  This method of systems analysis became influential in government and eventually began to dominate governmental logics starting in 1961 when Robert McNamara acceded to the Pentagon under President John F. Kennedy. McNamara’s own personal backgroun
d had included statistical analysis—as a young statistical control officer in the US Air Force during the war in the Pacific and then as an advocate of systems analysis as he rose to the top of the Ford Corporation—and he took it upon himself to propel systems logics at the Pentagon. Systems analysis would be the progenitor of a broader kind of cost-benefit analysis that is today widespread throughout the American administrative state.9

  Immediately upon taking office in 1961, McNamara imposed systems analysis on military procurement and defense strategy under the name “Planning-Programming-Budgeting System (PPBS) analysis.” This first round of expansion—from narrow OR on weapons systems to broader applications of systems analysis to defense strategy—generated a lot of resistance within the military establishment, much of it targeted primarily at the controversial figure of McNamara himself. But, in Quade’s opinion, by 1966 “there ha[d] been substantial progress, and the years since 1961 have seen a marked increase in the extent to which analysis of policy and strategy have influenced decisionmakers on the broadest issues of national defense.”10

  President Johnson expanded the reach of systems analysis even further, announcing in a statement to members of his cabinet and heads of federal executive agencies in 1965 that he had directed his budget director, Charles Schultze, to implement the new PPBS method throughout all federal agencies. Johnson emphasized that the new method would “identify national goals with precision and on a continuing basis,” help “search for alternative means of reaching those goals most effectively at the least cost,” and accurately “measure the performance of programs to insure a dollar’s worth of service for each dollar spent.” And to make it all work, President Johnson emphasized, would “take good people, the best you now have and the best you can find.”11 (These men came to be known as “the best and the brightest.”)