2. Sharon Lafraniere, Sarah Cohen, and Richard A. Oppel Jr., “How Often Do Mass Shootings Occur? On Average, Every Day, Records Show,” New York Times, December 2, 2015, https://www.nytimes.com/2015/12/03/us/how-often-do-mass-shootings-occur-on-average-every-day-records-show.html; Sharon Lafraniere, Daniela Porat, and Agustin Armendariz, “A Drumbeat of Multiple Shootings, but America Isn’t Listening,” New York Times, May 22, 2016, https://www.nytimes.com/2016/05/23/us/americas-overlooked-gun-violence.html.
3. Richard Stengel, “Why Saying ‘Radical Islamic Terrorism’ Isn’t Enough,” New York Times, February 13, 2017, https://www.nytimes.com/2017/02/13/opinion/why-saying-radical-islamic-terrorism-isnt-enough.html.
4. Tim Arango, “Iran Dominates in Iraq After US ‘Handed the Country Over,’” New York Times, July 15, 2017, https://www.nytimes.com/2017/07/15/world/middleeast/iran-iraq-iranian-power.html; David Leigh, “Iraq War Logs Reveal 15,000 Previously Unlisted Civilian Deaths—Leaked Pentagon Files Contain Records of More than 100,000 Fatalities Including 66,000 Civilians,” Guardian, October 22, 2010, https://www.theguardian.com/world/2010/oct/22/true-civilian-body-count-iraq; and Gilbert Burnham et. al, “Mortality After the 2003 Invasion of Iraq: A Cross-sectional Cluster Sample Survey,” The Lancet, October 11, 2006, https://web.archive.org/web/20150907130701/http://brusselstribunal.org/pdf/lancet111006.pdf.
5. They even create domestic terrorists through aggressive sting operations that invent and make possible plots that would never have arose; as the federal judge in the “Newburgh Four” case writes, a case involving four Muslim men in upstate New York, the FBI “came up with the crime, provided the means, and removed all relevant obstacles,” and thereby entrapped someone “whose buffoonery is positively Shakespearean in scope.” David K. Shipler, “Terrorist Plots, Hatched by the F.B.I.,” New York Times, April 28, 2012, http://www.nytimes.com/2012/04/29/opinion/sunday/terrorist-plots-helped-along-by-the-fbi.html; and Human Rights Watch and Columbia Law School’s Human Rights Institute, “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions,” July 21, 2014, https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-us-terrorism-prosecutions.
6. Stengel, “Why Saying ‘Radical Islamic Terrorism’ Isn’t Enough.”
7. See FM, xv–xvi; and Broadwell, All In, 351. As Paula Broadwell writes in her official biography of Petraeus, “Petraeus and Mattis teamed up to draft the new Counterinsurgency Field Manual in 2006.” On the social network of soldier-scholars, see Laleh Khalili, “The New (and Old) Classics of Counterinsurgency,” Middle East Report 255 (2010), http://www.merip.org/mer/mer255/khalili.html.
8. 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.
9. “H. R. McMaster: 5 Fast Facts You Need to Know,” Heavy, February 20, 2017, http://heavy.com/news/2017/02/h-r-mcmaster-donald-trump-national-security-adviser-wife-career-bio-age-who-is-books-flynn/.
10. “President Trump’s Taxpayer First Budget,” The White House, https://www.whitehouse.gov/taxpayers-first; Binyamin Appelbaum and Alan Rappeport, “Trump’s First Budget Works Only if Wishes Come True,” New York Times, May 22, 2017, https://www.nytimes.com/2017/05/22/us/politics/budget-spending-federal-deficit.html; Gregor Aisch and Alicia Parlapiano, “How Trump’s Budget Would Affect Every Part of Government,” New York Times, May 23, 2017, https://www.nytimes.com/interactive/2017/05/23/us/politics/trump-budget-details.html?q=refugee%20programs; Erica L. Greenmay, “Trump’s Budget, Breaking Tradition, Seeks Cuts to Service Programs,” New York Times, May 25, 2017, https://www.nytimes.com/2017/05/25/us/politics/trump-budget-americorps-peace-corps-service.html; and Zachary Cohen, “Trump Proposes $54 Billion Defense Spending Hike,” CNN, March 16, 2017, http://www.cnn.com/2017/03/16/politics/donald-trump-defense-budget-blueprint/index.html.
11. Arlette Saenz, “President Trump tells ABC News’ David Muir He ‘Absolutely’ Thinks Waterboarding Works,” ABC News, January 25, 2017, http://abcnews.go.com/Politics/president-trump-tells-abc-news-david-muir-absolutely/story?id=45045055; Republican presidential debate, ABC News, https://www.youtube.com/watch?v=Upnc_y1cKEk; Charlie Atkin, “Donald Trump Quotes: The 10 Scariest Things the Presumptive Republican Nominee Has Ever Said,” Independent, May 6, 2016, http://www.independent.co.uk/us/donald-trump-quotes-the-10-scariest-things-the-presumptive-republican-nominee-has-ever-said-a7015236.html; and Charlie Savage, “Obama Policies Give Successor a Path to Vast Security Powers,” New York Times, November 14, 2016, A1, https://www.nytimes.com/2016/11/14/us/politics/harsher-security-tactics-obama-left-door-ajar-and-donald-trump-is-knocking.html.
12. Donald J. Trump, “Flashback: I Will Do Whatever It Takes, Trump Says,” USA Today, February 15, 2016, http://www.usatoday.com/story/opinion/2016/02/15/donald-trump-torture-enhanced-interrogation-techniques-editorials-debates/80418458/.
13. Berman, “Donald Trump Says Muslims,”; “Donald Trump’s Muslim Ban Is Back Up on His Website,” AOL News, November 11, 2016, https://www.aol.com/article/news/2016/11/11/donald-trump-s-muslim-ban-is-back-up-on-his-website/21604038/; Michelle Ye Hee Lee, “Donald Trump’s False Comments Connecting Mexican Immigrants and Crime,” Washington Post, July 8, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/?utm_term=.815e72ec4e59; and Savage, “Obama Policies Give Successor a Path to Vast Security Powers.”
14. Hensch, “Trump Won’t Rule Out Database.”
15. David A. Fahrehhold, “Trump Recorded Having Extremely Lewd Conversation About Women in 2005,” Washington Post, October 7, 2016, https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html; and Matt Baume, “The Top Ten Worst Comments Donald Trump Has Made About LGBTQ people,” LGBTQ Nation, February 4, 2016, https://www.lgbtqnation.com/2016/02/the-top-ten-worst-comments-donald-trump-has-made-about-lgbtq-people/.
16. Nonprofit VOTE and US Elections Project, “America Goes to the Polls: A Report on Voter Turnout, 2016 Presidential Elections,” http://www.nonprofitvote.org/america-goes-to-the-polls-2016/; “Presidential Results,” CNN, “Election 2016,” http://www.cnn.com/election/results/president.
17. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace & World, 1966), vii (emphasis added).
18. Samuel Moyn, “Why the War on Terror May Never End,” New York Times Book Review, June 24, 2016, http://www.nytimes.com/2016/06/26/books/review/spiral-by-mark-danner.html.
12. A STATE OF LEGALITY
1. Proclamation 7463—Declaration of National Emergency by Reason of Certain Terrorist Attacks, September 14, 2001; see also Executive Order 13223 of September 14, 2001, “Ordering the Ready Reserve of the Armed Forces to Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation”; and Greenberg and Dratel, eds., The Torture Papers, 25 (Military Order of November 13, 2001).
2. Greenberg and Dratel, eds., The Torture Papers, 134 (Memo 11, dated February 7, 2002).
3. Oona Hathaway and Scott Shapiro, “Schmitt at Nuremberg,” in The Worst Crime of All: The Paris Peace Pact and the Beginning of the End of War (working paper in author’s possession, September 16, 2015), 12–13 and 22.
4. Hathaway and Shapiro, 22, quoting from Third Reich Sourcebook, 64.
5. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2006), 5.
6. Carl Schmitt, The Concept of the Political, trans. George Schwab (1932; repr. Chicago: University of Chicago Press, 2007); and Carl Schmitt, Dictatorship (1921; repr. Polity Press, 2013).
7. Hathaway and Shapiro, 19, quoting from Bernd Rüthers, “On the Brink of Dictatorship—Hans Kelsen and Carl Schmitt at Cologne 1933,” in Hans Kelsen and Carl Schmitt: A Juxtaposition, eds. Dan Din
er and Michael Stolleis (Gerlingen: Bleicher, 1999).
8. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), 2, 20, 87, and 23.
9. Ibid., 86 and 4.
10. Michael Hardt and Antonio Negri, Multitude (London: Hamish Hamilton, 2005), 7. Hardt and Negri had already used the concept in Empire, describing the “right to intervention” as stemming from “a permanent state of emergency and exception justified by the appeal to essential values of justice.” Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2000), 18.
11. Judith Butler, “Guantánamo Limbo,” The Nation, March 14, 2002, https://www.thenation.com/article/Guantánamo-limbo/; see also Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004).
12. Slavoj Žižek, “Are We In a War? Do We Have an Enemy?,” London Review of Books, May 23, 2002, 3–6, http://www.lrb.co.uk/v24/n10/slavoj-zizek/are-we-in-a-war-do-we-have-an-enemy.
13. Thomas Anthony Durkin, “Permanent States of Exception: A Two-Tiered System of Criminal Justice Courtesy of the Double Government Wars on Crime, Drugs & Terror,” Valparaiso University Law Review 50 (2016): 419–492, http://scholar.valpo.edu/vulr/vol50/iss2/3; and Kim Lane Scheppele, “Law in a Time of Emergency: States of Exception and the Temptations of 9/11,” University of Pennsylvania Journal of Constitutional Law 6 (2004): 1001–1083, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=611884.
14. Eric Posner and Adrian Vermeule, “Should Coercive Interrogation Be Legal?,” Michigan Law Review 104 (2006): 671–707; Eric Posner and Adrian Vermeule, “Demystifying Schmitt,” in The Oxford Handbook of Carl Schmitt, eds. Jens Meierhenrich and Oliver Simons (New York: Oxford University Press, 2017); John Yoo, War by Other Means: An Insider’s Account on the War on Terror (New York: Atlantic Monthly Press, 2006); and see generally Yoo memos in Greenberg and Dratel, eds., The Torture Papers.
15. Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal 113 (2004): 1030, 1037, and 1044, http://www.yalelawjournal.org/essay/the-emergency-constitution. For an in-depth discussion of the exception in American constitutionalism, see Thomas P. Crocker’s book manuscript, Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism.
16. Fareed Zakaria, “End the War on Terror and Save Billions,” Washington Post, December 6, 2012, https://www.washingtonpost.com/opinions/fareed-zakaria-end-the-war-on-terror-and-save-billions/2012/12/06/a468db2a-3fc4-11e2-ae43-cf491b837f7b_story.html.
17. Scott Horton, “State of Exception: Bush’s War on the Rule of Law,” Harper’s Magazine, July 2007, http://users.clas.ufl.edu/burt/Renaissancetragedy/Harpers.pdf; see also Scott Horton, “Benjamin—History and the State of Exception,” Harper’s Magazine, May 14, 2010, http://harpers.org/blog/2010/05/benjamin-history-and-the-state-of-exception/.
18. See also Mark Danner, “After September 11: Our State of Exception,” London Review of Books, October 13, 2011, http://www.nybooks.com/articles/archives/2011/oct/13/after-september-11-our-state-exception/; and David C. Unger, The Emergency State: America’s Pursuit of Absolute Security at All Costs (New York: Penguin Books, 2013). Unger argues that presidents since World War II have inflated external threats in order to justify the creation of an “emergency state,” which not only expands the powers of the executive branch and erodes civil liberties, but is also ineffective at protecting the nation.
19. The relationship between democracy and war, though, is complex, and for a nuanced discussion that explores the role of collective decision-making in rendering violence legitimate, see Christopher Kutz, On War and Democracy (Princeton: Princeton University Press, 2016).
20. Galula, Counter-insurgency Warfare, 56. I am by no means the first or only one to resist the framework of the state of exception. The historian Samuel Moyn also rejects the notion of exception, arguing that what we face today is a more restrained and humane war without end—we face what Moyn refers to as “a new form of humane warfare simultaneously without boundaries in time and space.” Samuel Moyn, “Why the War on Terror May Never End,” New York Times Book Review, June 24, 2016, http://www.nytimes.com/2016/06/26/books/review/spiral-by-mark-danner.html. Fleur Johns vehemently rejects the understanding of Guantánamo Bay as a domain of sovereign exception, arguing instead that Guantánamo is “an instance of the norm struggling to overtake the exception.” (Fleur Johns, “Guantánamo Bay and the Annihilation of the Exception,” European Journal of International Law 16, no. 4 (2005): 614–615, http://www.ejil.org/pdfs/16/4/311.pdf. Naser Hussain, in the pages of Critical Inquiry, contends that, rather than unique or exceptional, “many of the mechanisms and justifications we find there are continuous and consonant with a range of regular law and daily disciplinary state practices, in particular, the domains of immigration and domestic incarcerations—the difference being one more of degree than kind.” (Naser Hussain, “Beyond Norm and Exception: Guantánamo,” Critical Inquiry (2007), http://www.jstor.org/stable/10.1086/521567). Others as well criticize the turn to exception as an explanatory mechanism. See, for example, Venator Santiago, “From the Insular Cases to Camp X-Ray: Agamben State of Exception and United States Territorial Law,” Studies in Law, Politics, and Society 15, no. 5 (a critical account of Agamben’s use of the state of exception, especially in the United States). But none, to the best of my knowledge, have proposed the framework of counterinsurgency warfare.
21. Michel Foucault, The Punitive Society: Lectures at the Collège de France, 1972–1973, ed. Bernard E. Harcourt (New York: Palgrave, 2015), 144; and see generally the discussion of illegalisms in the “Course Context,” in Ibid., 281–293.
22. Ibid., 156, 146, and 149.
23. For a similar argument in the context of the death penalty, see Cass R. Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs,” Stanford Law Review 58, no. 3 (April 2010): 703.
24. Quoted in Greenberg, Rogue Justice, 221.
25. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1984).
26. Robert Weisberg, “De-regulating Death,” Supreme Court Review (1983): 305–395.
27. Senate Report, 19.
28. Greenberg, Rogue Justice, 252, 266, and 7.
29. National Defense Authorization Act (NDAA), quoted in Ibid., 206.
30. Greenberg, Rogue Justice, 206.
31. See Wadie E. Said, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions (New York: Oxford University Press, 2015); and Jameel Jaffer, introduction to The Drone Memos: Targeted Killing, Secrecy, and the Law, ed. Jameel Jaffer (New York: The New Press, 2016). For a fascinating critical theory and historical engagement with the notion of the rule of law, see Keally McBride, Mr. Mothercountry: The Man Who Made the Rule of Law (New York: Oxford, 2016).
32. Eric Holder, quoted in Greenberg, Rogue Justice, 206.
33. The American Constitution Society workshop, “Charlie Savage on the National Security State,” Thursday, November 12, 2015, Jerome Greene Hall 102A, Columbia University.
34. Greenberg, “From Fear to Torture,” xvii–xx, at xvii.
35. Memo to Commander, Joint Task Force 170 at Guantánamo Bay, October 11, 2002, signed by Diane E. Beaver, in Greenberg and Dratel, eds. The Torture Papers, 229.
36. Sitaraman, The Counterinsurgent’s Constitution, 240.
37. Michel Foucault, Abnormal: Lectures at the Collège de France, 1974–1975, eds. Valerio Marchetti and Antonella Salomoni (London and New York: Verso, 2004), 117 and 129; Michel Foucault, “About the Concept of the ‘Dangerous Individual’ in 19th Century Legal Psychiatry,” International Journal of Law and Psychiatry 1 (1978): 1–18.
13. A NEW SYSTEM
1. Bruce L. R. Smith, The RAND Corporation: Case Study of a Nonprofit Advisory Corporation (Cambridge: Harvard University Press, 1966), 6–7.
2. In the United Kingdom, where OR largely originated,
it was called “operational research.” This definition is from the Operational Research Society of Great Britain, Operational Research Quarterly 13, no. 3 (1962): 2822, http://www.wata.cc/forums/uploaded/136_1167433681.pdf. For a history of Operations Research, see Maurice W. Kirby, Operational Research in War and Peace: The British Experience from the 1930s to 1970 (London: Imperial College Press 2003); and S. M. Amadae, Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (Chicago: University of Chicago Press, 2003).
3. Operational Research Quarterly 13, no. 3 (1962): 282.
4. Edward S. Quade, Systems Analysis Techniques for Planning-Programming-Budgeting (Santa Monica: RAND Corporation, 1966), 3.
5. Smith, The RAND Corporation, 8.
6. Quade, Systems Analysis Techniques, 9.
7. Ibid., 10–11.
8. Ibid., 28.
9. On McNamara, see Deborah Shapley, Promise and Power: The Life and Times of Robert McNamara (Boston: Little, Brown and Company, 1993); John A. Byrne, The Whiz Kids: Ten Founding Fathers of American Business—and the Legacy They Left Us (New York: Doubleday, 1993); and H. R. McMaster, Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff, and the Lies that Led to Vietnam (New York: Harper Collins, 1997). I sketched some of this history in my previous book Exposed, 153–156, and there are excellent histories of the birth of systems analysis, see especially Amadae, Rationalizing Capitalist Democracy.
10. Quade, Systems Analysis Techniques, 2.
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