The Counterrevolution

by Bernard E. Harcourt

  The eternal recurrence of new forms of intolerable servitude, and with them new forms of resistance, reveals that human history—rather than a progressive march toward absolute knowledge, the withering of the state, or the end of history—is a constant struggle over our own subjection, a recurring battle over the making of our own subjectivity, of ourselves as subjects. Once we recognize the perpetual recurrence of this struggle, then and only then will we know our task, for today and for the future: to resist the always encroaching forms of tyrannical power, those violent desires for subjection, the constant and recurring attempts to govern through fear, through terror, through absolute domination.

  Today, it is not the inquisitorial theocratic tyranny of Ockham’s time that we face, even though the inquisitorial dimensions are not entirely absent. No, what we face today in the West—in the United States and some of its allies—is a new form of governing rooted in a military paradigm of counterrevolutionary war. The very methods and strategies that we developed to contain the colonized other have come back to inflect the way that our government now governs us. We in the West now live, at home, shoulder to shoulder with the insurgent other—ourselves—and have started to govern ourselves, at home and abroad, as we brutally and mistakenly learned to govern the colonized others.

  Brutal excesses, terror, and tyrannical power dominate the wider political and social realm—whether in the form of sexual humiliation at Abu Ghraib, indefinite detention at Guantánamo Bay, solitary confinement in prisons, surveillance of American mosques, or the fact that our precision drone strikes have, as of April 2017, killed upwards of 200 innocent children outside war zones.7 The fact that US drones have killed more civilians than high-profile targets and that our policing at home has now become hypermilitarized is precisely the rule of a despotic power. When sitting presidents condone this kind of terrorizing “collateral damage,” when our highest public officials justify and legalize it, when presidential candidates up the ante—seemingly without consequences—by literally calling for the violent torture of innocent family members of suspected terrorists or the outright ban of Muslims, we need to take heed. Just as we must when some people strap bombs on themselves or mercilessly kill innocent civilians in Beirut, Paris, Istanbul, Orlando, or Baghdad.

  This contemporary form of terrorizing tyrannical power is not exceptional, as we know from the tragic history of totalitarianism in the twentieth century, the ghastly record of slavery in the nineteenth, the brutal supplices of the eighteenth, and forms of inquisition before then. Just as torture was legislated and legally regulated during the Inquisition, ordeals during the ancien régime, and pogroms during the twentieth century, The Counterrevolution is firmly within the structure of a rule of law. We simply fail to recognize how manipulable the rule of law can be—we fail to acknowledge the dark side of legality.

  In the end, though, the fact that we are not facing an utterly exceptional, but rather a fully coherent and systematic paradigm should neither render us complacent nor resigned, but rather, on the contrary, like William of Ockham, intolerably insolent.

  Neither resigned, of course, but not too ambitious or arrogant on the other hand: not too confident or superior to believe that we could reverse the facticity of social conflict—that we, mere mortals, could here and now end the phenomenon of violence that has marked all known human existence and all known human history. No, we would just as much fail by overreaching.

  Another battle in an endless struggle—that is what we face.

  William of Ockham understood this well. And so would a long line of women and men who followed in his footsteps, over the ages, and resisted new tyrannous forms of government. Women and men who contested the rule of intolerable servitude, whether in the form of the Inquisition or chattel slavery, of fascism or mass incarceration, of colonialism or of the counterinsurgency practices of torture, summary executions, and total information awareness.

  Women and men during the Algerian war like Simone de Beauvoir, Frantz Fanon, Ahmed Ben Bella, or countless others who put themselves at risk to denounce the terror and disappearances—as de Beauvoir reminded us, “The most scandalous part of scandal is the getting used to it.”8 Scholars and historians like Pierre Vidal-Naquet who took his pen and pulpit to denounce counterrevolutionary methods.9 Conservative thinkers like François Mauriac, Nobel laureate of literature, who famously decried the inquisitorial tactics of the French army.10 Even government officials such as General Jacques Pâris de Bollardière (himself a torture victim at the hands of the Gestapo) who demanded that he be relieved of his duties in the French army in Algeria in March 1957 when he became aware of the use of torture, and for which he would serve sixty days in prison; or Paul Teitgen, secretary general of the police in Algiers, who resigned his post in September 1957 in protest over the three thousand disappearances.11

  Women and men in this country like Angela Davis, James Baldwin, Daniel Ellsberg, and countless others who, with great courage and risk to themselves, challenged counterinsurgency practices abroad and their domestication at home. Many Americans before us contested COINTELPRO, the brutal repression of the Black Panthers, the violent excesses at Attica and elsewhere. And many today continue to challenge the excess of counterinsurgency warfare and the domestication of the counterinsurgency—women and men like Linda Sarsour, Alicia Garza, Rachel Herzing, Edward Snowden, Laura Poitras, Glenn Greenwald, and so many others—so many unnamed others—and collectivities, who defy these new forms of tyranny.

  There is ongoing resistance. The Black Lives Matter movement, Black Youth Project 100, Critical Resistance, and other groups have challenged the militarization and lethality of the police. United We Dream, the New Sanctuary Coalition NYC, metropolitan cities, and even the state of California have actively challenged the demonization of undocumented residents. The Council on American-Islamic Relations, the American Civil Liberties Union, again even states, such as Washington and Hawaii, have challenged the Muslim ban.

  But it is time to see the larger arc of what we are facing. It is critical to understand what exactly we are up against. The militarized policing, the demonization of Muslims and Mexicans, total information awareness—these are all interlocking pieces of a larger phenomenon: The Counterrevolution. We now need to visualize the whole, to see the governing paradigm, in order to translate our activism into a truly effective mobilization.

  And in resisting The Counterrevolution, my only hope is that we, and our children too, will be mindful of the words and the courage, and will heed the parrhesia of the friar Ockham.

  ACKNOWLEDGMENTS

  This book has been enriched and inspired by conversations and exchanges with friends and colleagues, and my only hope is that I will be able to express in person my deep gratitude and the extent of my appreciation. Mia Ruyter has been my constant and treasured interlocutor. Jesús R. Velasco, a brilliant intellectual camarade and critic. Seyla Benhabib, an inspiring and generous mentor. Didier Fassin, an extraordinary critical companion. François Ewald, a constant intellectual force. Steve Bright, a moral compass. And Tom Durkin, an unbending partner.

  It has been a privilege to work so closely with Brian Distelberg at Basic Books on this project. Brian has been my most remarkable reader and critic, and has offered superb guidance and advice throughout, for which I am deeply grateful. I also was privileged to receive such generous counsel, feedback, and suggestions from Edward Kastenmeier, for which I am also extremely grateful.

  I had the privilege to be at the Institute for Advanced Study (IAS) at Princeton for the 2016–2017 academic year and to discuss these ideas all year long. It was for me a luxury to think about this project with Didier Fassin, Joan Scott, Michael Waltzer, Malcolm Bull, Andrew Dilts, Thomas Dodman, Karen Engle, Peter Goddard, Juan Obarrio, Massimiliano Tomba, Linda Zerilli, and the many other brilliant members from a memorable year at the institute, including Lori Allen, Fadi Bardawil, Nick Cheesman, Marcello Di Bello, Allegra McLeod, Reuben Miller, Amr Shalakany, and our other friends and
colleagues. I also have been extremely fortunate to be so well supported and encouraged at two other exceptional institutions while I worked on this project: Columbia University in New York City and the École des hautes études en sciences sociales (EHESS) in Paris. I am deeply grateful to everyone there who so warmly and generously supported my work, especially Lee Bollinger, Pierre-Cyrille Hautcoeur, Gillian Lester, and David Madigan.

  My colleagues at Columbia University, especially David Pozen, Jeremy Kessler, Nadia Urbinati, Sarah Knuckey, Patricia Williams, Rosalind Morris, Jessica Bulman-Pozen, Jameel Jaffer, Sarah Cleveland, Liz Emens, Jeff Fagan, Katherine Franke, Carol Sanger, and Kendall Thomas have been a source of inspiration and guidance, as have my other wonderful colleagues around campus and everyone who attended and critiqued an early sketch at the faculty retreat in September 2015. The students in Jesús Velasco’s and my seminar at Columbia University, “From the Inquisition to Guantánamo,” especially Kalinka Alvarez, Raphaëlle Burns, Clava Brodsky, Alexandra Cook, Gilles Gressani, Joseph Lawless, Matthew Mautarelli, David Ragazzoni, and many others, also deeply enriched my thinking, for which I am deeply indebted. I would like to extend a special thanks to Joseph Lawless and Anna Krauthamer for all their collaboration and support, especially as the manuscript came together. It has been an honor and a privilege to work with you both on this project.

  I have placed this work in the memory of an inspiring teacher, brilliant critical thinker, and exceptional mentor, who inspired me to pursue my theoretical interests and guided me at an early stage of my intellectual journey—Sheldon S. Wolin, an extraordinary man, an inspiring professor, and a deeply generous adviser who encouraged me, early on, to dire vrai. I would also like to place this work under the sign of the many women and men with whom I have had the privilege of struggling over the years to resist forms of excess, especially Bryan Stevenson, George Kendall, Randy Susskind, LaJuana Davis, Brett Dignam, Ruth Friedman, Jim Liebman, Cathleen Price, Azim Ramelize, and our many colleagues; of the many intellectual comrades over the years as well, especially of late Etienne Balibar, Patricia Dailey, Daniel Defert, Bob Gooding-Williams, Daniele Lorenzini, W. J. T. Mitchell, John Rajchman, Judith Revel, Ann Stoler, Michael Taussig, Brandon Terry, and Adam Tooze; and of the wonderful students whose dedication to public service has been, for me, a true inspiration, including most recently Laura Baron, Nika Cohen, Michael Cassel, Maria Teresa LaGumina, Patricio Martinez-Llompart, Jindu Obiofuma, Egon Von Conway, Phoebe Wolfe, and many more.

  I dedicate this book to my real teachers, mentors, and heroes, Isadora Ruyter-Harcourt and Léonard Ruyter-Harcourt, with my sincere confidence that you and your generation are now and will continue to heed the call of Ockham’s parrhesia.

  “The antidote to repression is, simply put, more resistance.”

  —Kristian Williams, Life During Wartime: Resisting Counterinsurgency (2013)

  Bernard E. Harcourt is the Isidor and Seville Sulzbacher Professor of Law and Professor of Political Science at Columbia University. The author of several books, including The Illusion of Free Markets and Exposed, he lives in New York City.

  PRAISE FOR

  The Counterrevolution:

  “Bernard Harcourt’s The Counterrevolution offers a masterful look into the deeper logic and long-term consequences of the systemic changes that took place in the United States in the name of the war on terror. Harcourt brilliantly recasts the premises, the terminology, and the consequences of post-9/11 policies of surveillance, detention, torture, and targeted killings in a way that is bound to transform our understanding of our times and to inspire new means of protest and counter-action. The Counterrevolution will no doubt become a must-read for any student of the era.”

  —Karen J. Greenberg, author of Rogue Justice and editor of The Torture Papers

  “I’m not on board with the premise, and I found something to disagree with on nearly every page, but make no mistake: The Counterrevolution is an important and deeply challenging book. It should be mandatory for anyone who cares about the future of the Republic, especially to challenge those who want to believe, as I do, that we aren’t doomed.”

  —Noah Feldman, author of The Three Lives of James Madison

  NOTES

  THE BIRTH OF THE COUNTERREVOLUTION

  1. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, approved December 13, 2012, updated for release April 3, 2014, declassification revisions December 3, 2014 (hereafter “Senate Report”), pp. 85 and 87.

  2. Senate Report, pp. 90, 40, 42, and 43–44 of “Executive Summary.” Regarding the last incident, by the sixth day of the torture, the CIA interrogators believed the detainee had no useful information and none was obtained. Senate Report, pp. 42 and 45–46 of “Executive Summary.”

  3. Senate Report, pp. 3, 4, 10, 19n4 of “Findings and Conclusions,” and pp. 44 and 56 of “Executive Summary”; and see Anthony Lewis, introduction to The Torture Papers: The Road to Abu Ghraib, eds. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), xiii–xvi.

  4. The Bureau of Investigative Journalism, “YEM178, December 6, 2014,” https://www.thebureauinvestigates.com/2014/01/06/yemen-reported-us-covert-actions-2014/#YEM178; and see embedded video here: https://www.thebureauinvestigates.com/2014/01/06/yemen-reported-us-covert-actions-2014/#YEM178.

  5. Charlie Savage and Scott Shane, “US Reveals Death Toll from Airstrikes Outside War Zones,” New York Times, July 1, 2016, http://www.nytimes.com/interactive/2016/07/01/world/document-airstrike-death-toll-executive-order.html; for a full archive surrounding the drone wars, see The Drone Memos: Targeted Killing, Secrecy, and the Law, ed. Jameel Jaffer (New York: The New Press, 2016); for theoretical perspectives on drones and air power, see Derek Gregory, “From a View to a Kill: Drones and Late Modern War,” Theory, Culture, and Society 28, no. 7–8 (2011): 188–215; and Sven Lindqvist, A History of Bombing, trans. Linda Haverty Rugg (New York: The New Press, 2001); and for drone-victim statistics as per the Bureau of Investigative Journalism on April 23, 2015, see https://www.thebureauinvestigates.com/2015/04/23/hostage-deaths-mean-38-westerners-killed-us-drone-strikes/.

  6. The Bureau of Investigative Journalism, “Drone Warfare,” accessed April 23, 2017, https://www.thebureauinvestigates.com/projects/drone-war.

  7. Grégoire Chamayou, A Theory of the Drone, trans. Janet Lloyd (New York: The New Press, 2015), 14.

  8. John Ribeiro, “Secret Court Extends NSA Surveillance Rules with No Changes,” IDG News Service, December 9, 2014, http://www.pcworld.com/article/2857352/us-court-extends-nsa-surveillance-rules-in-current-form.html; and Office of the Director of National Intelligence, “Joint Statement from the Office of the Director of National Intelligence and the Office of the Attorney General on the Declassification of Renewal of Collection Under Section 501 of the Foreign Intelligence Surveillance Act,” IC on the Record, December 8, 2014, http://icontherecord.tumblr.com/post/104686605978/joint-statement-from-the-office-of-the-director-of.

  9. Klayman v. Obama, 957 F.Supp.2d 1, at p.33 (DDC 2013), reversed in Obama v. Klayman, 800 F.3d 559 (DC Cir. 2015).

  10. For the most part, these NSA surveillance programs continue unabated. The Section 215 bulk-collection program itself was amended in June 2015 under the USA FREEDOM Act so that the telecommunication companies, rather than the NSA, would hold our personal data and make it available to the government on request. For quotations in paragraph, see Glenn Greenwald, “XKeyscore: NSA Tool Collects ‘Nearly Everything a User Does on the Internet,’” Guardian, July 31, 2013, http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data; Glenn Greenwald and Ewen MacAskill, “NSA Prism Program Taps into User Data of Apple, Google and Others,” Guardian, June 6, 2013, http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data; and Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (New York: Henry Holt, 2014), 153–157.

 
; 11. DOI’s Inspector General for NYPD, “An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity—August 23, 2016,” http://www1.nyc.gov/site/oignypd/reports/reports.page.

  12. Matt Apuzzo and Adam Goldman, “With CIA Help, NYPD Moves Covertly in Muslim Areas,” Associated Press, August 23, 2011, https://web.archive.org/web/20120309020234/https://www.ap.org/pages/about/whatsnew/wn_082511a.html; and “Highlights of AP’s Pulitzer Prize–Winning Probe into NYPD Intelligence Operations,” Associated Press (with links to stories and documents), https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

  13. Intelligence Division, Demographics Unit, “Newark, New Jersey Demographics Report,” http://hosted.ap.org/specials/interactives/documents/nypd/nypd_newark.pdf.

  14. As Ganesh Sitaraman opens his book, The Counterinsurgent’s Constitution: Law in the Age of Small Wars (New York: Oxford University Press, 2013), 3: “We live in an age of small wars. Around the world, warfare is no longer characterized by amassed armies on pitched battlefields or even by tank battalions maneuvering to break through enemy lines. Rather, insurgents hibernate in the shadows, emerging only when ready for devastating attack.”

  15. See generally Joshua Bloom and Waldo E. Martin Jr., Black Against Empire: The History and Politics of the Black Panther Party (Berkeley: University of California Press, 2014); and Richard Wolin, The Wind from the East: French Intellectuals, the Cultural Revolution, and the Legacy of the 1960s (Princeton: Princeton University Press, 2010), 318–321.

  16. James Baldwin, quoted in Imani Perry, “From the War on Poverty to the War on Crime by Elizabeth Hinton,” New York Times Book Review, May 27, 2016, http://www.nytimes.com/2016/05/29/books/review/from-the-war-on-poverty-to-the-war-on-crime-by-elizabeth-hinton.html.