The Counterrevolution

by Bernard E. Harcourt

  9. FM, 51.

  3. TOTAL INFORMATION AWARENESS

  1. See generally National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004), https://www.9-11commission.gov/report/911Report.pdf; and Richard Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Lanham, MD: Rowman & Littlefield, 2005).

  2. James Bamford, The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America (New York: Anchor Books, 2009), 102; and Daniel Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (New Haven: Yale University Press, 2011), 183–185.

  3. David Cole, “Can the NSA Be Controlled?” The New York Review of Books, June 19, 2014, 17, http://www.nybooks.com/articles/archives/2014/jun/19/can-nsa-be-controlled.

  4. Dan Eggen and Paul Kane, “Gonzales Hospital Episode Detailed,” Washington Post, May 16, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html; and Bernard E. Harcourt, Exposed: Desire and Disobedience in the Digital Age (Cambridge, MA: Harvard University Press, 2015).

  5. Gompert and Gordon, War by Other Means, 137 and 137n25. For a fascinating early instance of a RAND and Pentagon project to obtain total information awareness about a population, listen to Malcolm Gladwell, “Saigon 1965,” Revisionist History (podcast), season 1, episode 2, http://revisionisthistory.com/seasons.

  6. Anthony Lewis, introduction to The Torture Papers, xiii–xvi.

  7. Senate Report, 53, 54, and 69.

  8. Senate Report, 77.

  9. Marie-Monique Robin, Escadrons de la mort, l’école française (Paris: La Découverte, 2004), 55.

  10. Senate Report, 77, 30–31, and 33.

  11. Ibid., 35.

  12. Ibid.

  13. Ibid., 18.

  14. Ibid., 18, 22, and 23.

  15. Ibid., 36, 36–37 (emphasis added), and 38.

  16. Ibid., 118.

  17. Ibid., 69–70 (gun and drill incidents resulted in the CIA officer and chief of base being disciplined, see Senate Report, 70), 117 (“placing a broom handle behind the knees of a detainee while that detained was in a stress position” resulting in decertification of interrogator), 76 (interrogation plan for Ramzi bin al-Shibh, which becomes template), and 81–82 (interrogation plan for Khalid Sheikh Muhammad).

  18. Ibid., 115–116.

  19. Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005), 134–135 and 122.

  20. Ibid., 119–120.

  21. Ibid., 122 and 222.

  22. Ibid., 213–214 (emphasis added).

  23. Ibid., 227–228, 237, and 360–361.

  24. Though these metaphors of ticking time-bombs are themselves so misleading and mask the reality of torture. See generally Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances (Cambridge, UK: Cambridge University Press, 2013).

  25. Reproduced in Lu Ann Homza, The Spanish Inquisition, 1478–1614: An Anthology of Sources (Indianapolis: Hackett Publishing Company, 2006), 45–46. See also the notary’s description of the use of the rack and water torture in the case against María González in Toledo in 1513, reproduced in Homza, The Spanish Inquisition, 56–57.

  26. See, for example, Greenberg and Dratel, eds., The Torture Papers, 229.

  27. See, for example, Gompert and Gordon, War by Other Means, 6 and following; and Sitaraman, The Counterinsurgent’s Constitution, 35–38.

  28. However, I do not go as far as Marnia Lazreg who suggests, in her book Torture and the Twilight of Empire, that torture is the direct and necessary outcome of modern warfare theory or that it “could not be implemented successfully without its [torture’s] use.” Marnia Lazreg, Torture and the Twilight of Empire, 15; see also p. 3. Under certain variations of counterinsurgency theory, torture can be avoided and replaced by substitutes such as psychological methods or drone strikes. That does not, however, redeem counterinsurgency theory. It merely represents different styles of modern warfare.

  29. Laleh Khalili, Time in the Shadows: Confinement in Counterinsurgencies (Stanford: Stanford University Press, 2013).

  4. INDEFINITE DETENTION AND DRONE KILLINGS

  1. Mohamedou Ould Slahi, Guantánamo Diary, ed. Larry Siems (New York: Back Bay Books, 2015), 29–30.

  2. Ibid.

  3. Ibid.

  4. Slahi, Guantánamo Diary, 31–32.

  5. The continuities in the treatment of detained suspects throughout the history of counterinsurgencies is analyzed in depth in Khalili, Time in the Shadows.

  6. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998) 114.

  7. Jenifer Fenton, “Freed Guantanamo Detainees: Where are they now?” Aljazeera, January 11, 2016, http://www.aljazeera.com/indepth/features/2016/01/released-guantanamo-bay-detainees-160110094618370.html; and Noah Rayman, Where Are All Those Freed Guantanamo Detainees Now?” Time, December 8, 2014, http://time.com/3624445/guantanamo-detainees-uruguay/.

  8. Andrew Taylor, “Speaker: Legal Steps to Stop Obama from Closing Guantánamo,” US News & World Report, February 24, 2016, https://www.usnews.com/news/politics/articles/2016-02-24/speaker-legal-steps-to-stop-obama-from-closing-guantanamo.

  9. Tom Kludt, “Gitmo Diary Cracks Amazon’s Top-Sellers List,” CNN: Media, January 21, 2015, http://money.cnn.com/2015/01/20/media/guantanamo-diary-mohamedou-ould-slahi-aclu/; “Guantánamo Diary,” Little, Brown and Company, accessed May 10, 2017, http://www.littlebrown.com/guantanamo.html; “Zero Dark Thirty,” Box Office Mojo, accessed May 10, 2017, http://www.boxofficemojo.com/movies/?id=binladen.htm. The film has grossed over $132,800,000 in box-office revenues, which, at an average movie ticket of $8.15 (the national average at the time) would mean more than sixteen million tickets sold.

  10. Slavoj Žižek, “Zero Dark Thirty: Hollywood’s Gift to American Power,” Guardian, January 25, 2013, https://www.theguardian.com/commentisfree/2013/jan/25/zero-dark-thirty-normalises-torture-unjustifiable.

  11. Chamayou, A Theory of the Drone, 46.

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

  13. Ken Dilanian, Courtney Kube, and William M. Arkin, “US Launches Airstrikes in Yemen,” NBC News, March 2, 2017, http://www.nbcnews.com/news/us-news/u-s-launches-air-strikes-yemen-n728186.

  14. Murtaza Hussain, “US Has Only Acknowledged a Fifth of Its Lethal Strikes, New Study Finds,” The Intercept, June 13, 2017, https://theintercept.com/2017/06/13/drone-strikes-columbia-law-human-rights-yemen/; Alex Moorehead and Waleed Alhariri, “US Secrecy and Transparency in the Use of Lethal Force,” Just Security, June 13, 2017, https://www.justsecurity.org/42059/u-s-secrecy-transparency-lethal-force/.

  15. Chamayou, A Theory of the Drone, 64.

  16. David Kilcullen and Andrew McDonald Exum, “Death from Above, Outrage Down Below,” New York Times, May 16, 2009, http://www.nytimes.com/2009/05/17/opinion/17exum.html. Also cited in Chamayou, A Theory of the Drone, 65.

  17. Chamayou, A Theory of the Drone, 62.

  18. Ibid., 12.

  19. Kilcullen and Exum, “Death from Above, Outrage Down Below.”

  20. US Director of National Intelligence, “Summary of Information Regarding US Counterterrorism Strikes Outside Areas of Active Hostilities,” https://content.govdelivery.com/attachments/USODNI/2016/07/01/file_attachments/579487/DNI%2BRelease%2Bon%2BCT%2BStrikes%2BOutside%2BAreas%2Bof%2BActive%2BHostilities_FINAL.PDF; Office of the Press Secretary, “Executive Order on the US Policy on Pre & Post-Strike Measures,” The White House, Statements and Releases, July 1, 2016, https://www.whitehouse.gov/the-press-office/2016/07/01/fact-sheet-executive-order-us-policy-pre-post-strike-measures-address; and Charlie Savage and Scott Shane, “US Reveals Death Toll From Airstrikes Outside War Zones,” New York Times, July 1, 2016, http://www.nytimes.com/2016/07/02/world/us-reveals-death-toll-from-airstrikes-outs
ide-of-war-zones.html.

  21. Savage and Shane, “US Reveals Death Toll.”

  22. Jack Serle, “Obama Drone Casualty Numbers a Fraction of Those Recorded by the Bureau Comments,” Bureau of Investigative Journalism, July 1, 2016, https://www.thebureauinvestigates.com/2016/07/01/obama-drone-casualty-numbers-fraction-recorded-bureau/; Savage and Shane, “US Reveals Death Toll” and Greg Miller, “Why the White House Claims on Drone Casualties Remain in Doubt,” Washington Post, July 1, 2016, https://www.washingtonpost.com/world/national-security/why-the-white-house-claims-on-drone-casualties-remain-in-doubt/.

  23. “Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force,” Columbia Law School Human Rights Clinic and Sana’a Center for Strategic Studies, June 2017, https://www.outoftheshadowsreport.com/#new-page; and Hussain, “US Has Only Acknowledged a Fifth of Its Lethal Strikes.”

  24. “Strikes in Afghanistan,” the Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/projects/drone-war/charts?show_casualties=1&show_injuries=1&show_strikes=1&location=afghanistan&from=2015-1-1&to=now.

  25. Kilcullen and Exum, “Death from Above, Outrage Down Below.”

  26. Henry Barnes, “‘The PTSD Stems from This Dirty Work’: New Film Documents Regretful Drone Pilots,” Guardian, February 15, 2016, https://www.theguardian.com/film/2016/feb/15/sonia-kennebeck-us-air-force-drone-war-home-roost. Hugh Gusterson examines the questions of proximity and distance in remote killings in his book, Drone: Remote Control Warfare (Cambridge, MA: MIT Press, 2016).

  27. Eric Fair, “An Interrogator’s Nightmare,” Washington Post, February 9, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/02/08/AR2007020801680.html; and Eric Fair, Consequence: A Memoir (New York: Henry Holt and Company, 2016).

  28. Eric Fair, “Owning Up to Torture,” New York Times, March 19, 2016, http://www.nytimes.com/2016/03/20/opinion/sunday/owning-up-to-torture.html.

  29. For a few, see Eric Fair on Democracy Now, https://youtu.be/2oGh93UnxQg and https://youtu.be/VRQzf2QcidA, or the drone operators on Democracy Now, https://youtu.be/S6sqUJaxMdM and https://youtu.be/ArlvkgvfvgA.

  30. Chamayou, A Theory of the Drone, 16, 15, and 177.

  31. Theodor Adorno, Minima Moralia: Reflections on a Damaged Life (1944; repr. London: Verso, 2005); discussed also in Chamayou, A Theory of the Drone, 205.

  32. See Chris Woods and Jack Serle, “Hostage Deaths Mean 38 Westerners Killed by US Drone Strikes, Bureau Investigation Reveals,” Bureau of Investigative Journalism, April 23, 2015, https://www.thebureauinvestigates.com/2015/04/23/hostage-deaths-mean-38-westerners-killed-us-drone-strikes/.

  5. WINNING HEARTS AND MINDS

  1. Trinquier, Modern Warfare, 105; and FM, 35.

  2. Rosa Brooks, How Everything Became War and the Military Became Everything: Tales from the Pentagon (New York: Simon & Schuster, 2016), 344, 341, and 14.

  3. See generally chap. 2 in Mathias, Galula in Algeria, which details what Galula actually did in Djebel Aïssa Mimoun, Algeria.

  4. FM, 54–55.

  5. FM, 98; and see also Sitaraman, The Counterinsurgent’s Constitution, 11 and 38. “Economically, counterinsurgents seek a stable environment that fosters reconstruction and development projects. Socially, counterinsurgents provide essential services, like water, sewage, and trash, and they represent local religious and cultural customs” (Sitaraman, 11).

  6. Peter Baker, “Trump Chooses H. R. McMaster as National Security Adviser,” New York Times, February 20, 2017, https://www.nytimes.com/2017/02/20/us/politics/mcmaster-national-security-adviser-trump.html; see also FM, 375; and “Clear-Hold-Build in Tal Afar, 2005–2006: Office of the Assistant Secretary of Defense (Public Affairs),” news briefing with Col. H. R. McMaster, January 27, 2006.

  7. FM, 183–184.

  8. Galula, Counterinsurgency Warfare, 78.

  9. Quoted in Broadwell, All In, 59 and 61–62.

  10. Broadwell, All In, 62.

  11. Matthieu Aikins, “The Bidding War,” New Yorker, March 7, 2016, http://www.newyorker.com/magazine/2016/03/07/the-man-who-made-millions-off-the-afghan-war; and Alissa J. Rubin, “Afghan Commander Issues Rules on Contractors,” New York Times, September 12, 2010, http://www.nytimes.com/2010/09/13/world/13petraeus.html.

  12. Aikins, “The Bidding War.”

  13. Ibid.

  14. Ibid.

  15. Ibid.; Broadwell, All In, 77–79; and Rubin, “Afghan Commander Issues Rules on Contractors.”

  16. Chaliand, Guerrilla Strategies, 29; Marnia Lazreg, Torture and the Twilight of Empire, 58. In this regard, it is interesting to note that after his command in Algeria, David Galula spent several years working on radio counterpropaganda through the “Psychological Action Branch” of the French Ministry of Defense. See chap. 5 in Mathias, Galula in Algeria.

  17. Kimberly Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan: We Were Never Here,” The Daily Beast, March 15, 2016, http://www.thedailybeast.com/articles/2016/03/15/obama-s-new-anti-isis-czar-wants-to-use-algorithms-to-target-jihadis.html.

  18. For further commentary on Target’s ability to digitally identify newly pregnant women, see Harcourt, Exposed, 124, 194, and 246; and see also Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

  19. Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

  20. Ibid.

  21. Ibid.

  22. Ibid.

  23. Galula, Pacification in Algeria, 102.

  24. Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

  25. See Aussaresses, Services Spéciaux; and Aussaresses, The Battle of the Casbah.

  26. General Massu, The Real Battle of Algiers, quoted in Kaufman, “The World: Film Studies.”

  6. GOVERNING THROUGH TERROR

  1. Trinquier, Modern Warfare, 113.

  2. The idea of governing through terror that I develop in this chapter is indebted to Foucault’s writings on governmentality, as well as Ian Hacking’s, and to Jonathan Simon’s brilliant book about governing techniques in the war on crime, Governing Through Crime (New York: Oxford University Press, 2006).

  3. Alleg, The Question, 38, 41, and 47.

  4. Page duBois, Torture and Truth (New York: Routledge, 1991), 152 and 7.

  5. Ibid., 64 and 65.

  6. Ibid., 35.

  7. Not that the Visigoths did not use torture. They too had rules and norms surrounding the use of torture—perhaps even more “responsibilizing” rules and norms, regulations that imposed greater responsibility on the person who was using torture. See Robert Burns’s summary of Visigothic regulations, of particular interest here, in Las Siete Partidas, ed. Robert I. Burns, trans. Samuel Parsons Scott (Philadelphia: University of Pennsylvania Press, 2000) (hereafter “LSP”), 1462; and see also Jesús R. Velasco, Dead Voice (Philadelphia: University of Pennsylvania Press, forthcoming).

  8. LSP, 1459, 650, and 1459–1460. The liability warnings are particularly interesting. As Homza writes, “Inquisitors explicitly warned defendants that any injuries they suffered during torture would be their own fault” (Homza, The Spanish Inquisition, xxv). We read this in every case of torture. So, for instance, again in the case of Marina González tried in Toledo in 1494, the inquisitors “said that if during the torture some evil, damage, wound, or death occurred to her, it would be her fault and not theirs” (Homza, The Spanish Inquisition, 45). Or, in the case of María González in Toledo in 1513, the inquisitors emphasized that “if she should receive death, a wound, or the loss of some limb during the torture, it would be her own fault” (Homza, The Spanish Inquisition, 55). By contrast, responsibility seemed to fall on the inquisitor in the Partidas.

  9. Homza, The Spanish Inquisition, xiii–xiv and 64–79.

  10. Ibid., xiv; and LSP, 1462n.

  11. Emmanuel Le Roy Ladurie, Montaillou: The Promised Land of Error (New York: Vintage Books, 1978), xiv and xv.

  12. See, generally, Karen J. Greenberg, Rogue Justice: The Making of the Security State (
New York: Crown Publishers, 2016), 174–182.

  13. Bob v. State, 32 Ala. 560, 562 (1858).

  14. Mose v. State, 36 Ala. 211, 226 (1860).

  15. State v. Clarissa, 11 Ala. 57 (1847), see pp. 61 and 61–62.

  16. Ibid., 62.

  17. As the Alabama Supreme Court explained, the slaveholder had an “interest to prevent a conviction, the consequence of which would be, the certain loss of one half his value, and the possible loss of his entire value.” The State v. Marshall, 8 Ala. 302, 307 (1845).

  18. The jailor, McGehee, told the slave, Bob, while he was detained in the county jail: “Bob you are a fool; you had better confess your guilt; everybody around here believes you are guilty; and you ought to know that it would be better for you to confess, and for your master to have your value in his pocket, than for you to have your neck broke, and he have no money for you.” Bob v. State, 32 Ala. 560, 562–563 (June 1858).

  19. Flag of the Union, December 7, 1842.

  20. See generally Bernard E. Harcourt, “Imagery and Adjudication in the Criminal Law: The Relationship Between Images of Criminal Defendants and Ideologies of Criminal Law in Southern Antebellum and Modern Appellate Decisions,” Brooklyn Law Review 61 (1995): 1206–214.

  21. Feodor Dostoevsky, “The Grand Inquisitor,” trans. Helena Blavatsky (1881; repr. Project Gutenberg, 2005), https://www.gutenberg.org/files/8578/8578-h/8578-h.htm.

  22. Ashley Parker and Maggie Haberman, “Donald Trump, After Difficult Stretch, Shows a Softer Side,” New York Times, April 20, 2016, http://www.nytimes.com/2016/04/21/us/politics/donald-trump-interview.html; Alex Myers, “Donald Trump Compares Winning Presidential Primaries to Winning Club Championships,” GolfDigest, March 6, 2016, http://www.golfdigest.com/story/donald-trump-compares-winning-presidential-primaries-to-winning-club-championships; and Ian Schwartz, “Trump: ‘We Will Have So Much Winning If I Get Elected That You May Get Bored with Winning,’” RealClearPolitics, September 9, 2015, http://www.realclearpolitics.com/video/2015/09/09/trump_we_will_have_so_much_winning_if_i_get_elected_that_you_may_get_bored_with_winning.html.