Scott
Michaelsen and David Johnson are co-editors of
The New Centennial Reivew.
The Guantánamo "Black Hole": The Law of War and
the Sovereign Exception was originally published in
MERIP (The Midde
East Report).
______________________________________
THE LIEBER
CODE
The humanitarian
laws of war were first codified by legal philosopher Francis Lieber
at a time long before the Geneva Conventions. The "Lieber
Code," which directly influenced both the Hague deliberations
at the turn of the century, and the Geneva Conventions in the
mid-twentieth century, was put into effect on April 24, 1863 by
Abraham Lincoln's secretary of war, Edwin Stanton. As Paragraph
155 of the Code clearly indicates, there are only two classes
of persons in warfare:
"All enemies in a regular war are divided into two general
classes -- that is to say, into combatants and non-combatants,
or unarmed citizens of the hostile government." Intriguingly,
before the Code's existence in 1862, the general-in-chief of the
US Army, Major General Henry Halleck, had already corresponded
with Lieber regarding the exceptional problem of "guerrilla
war." Lieber's 22-page reply was published before the Code
itself became public and went into effect. In other words, in
the history of the codification of the laws of war, the exception
to the normative rules came first, providing the strange ground
for the norm itself.
Lieber's
letter on the guerrilla operates via a kind of double logic of
the exception. Lieber is primarily concerned to distinguish between
legal combatants entitled "to the full benefits of the laws
of war" and "guerrillas" who are not. But as Lieber
defines the term, the guerrilla is
constituted by a variety of "kindred subjects," among
them figures variously named the "freebooter," the "brigand,"
the "partisan" and so on. "Partisans," for
example, are soldiers "detached from the main army"
who resemble, and yet must be distinguished from, a "free
corps" made up of "volunteers, generally raised by individuals
authorized to do so by the government." Even though the members
of this last sub-category are often "high-minded patriots,"
they are still to be rejected as unlawful combatants and treated
"on the principle of retaliation." (This "retaliation,"
as Lieber makes clear in his formal code, refers to indiscriminate
violence
that can even include the killing of prisoners of war. "The
law of war can no more wholly dispense with retaliation than can
the law of nations," he insists.) By the same token, the
category of lawful combatant cannot simply be limited to the regular
uniformed soldiers of an organized army. Lieber also suggests,
for example, that "the rising of the people to repel invasion
entitles them to the full benefits of the law of war" and
that a conquering power is "obliged to treat the captured
citizens in arms as prisoners of war."
At one
and the same time, Lieber charts a variety of fine distinctions
between otherwise similar practices, as he also draws a fundamental
line beyond which all distinctions dissolve, and where all combatants,
regardless of their specific motivations, are to be treated as
"common robbers" and subject, if necessary, to indiscriminate
violence. The law and practice of war thus remains inextricably
linked to the limitless barbarism that it always seeks to transcend.
This
double logic is deeply interwoven into the history of sovereignty
and even the development of American constitutional democracy.
Consider Lieber's description of one sub-category of illegal combatant:
"Freebooter
is a term which was in common use in the English language at
no very remote period; it is of rare use now, because the freebooter
makes his appearance but rarely in modern times, thanks to the
more regular and efficient governments and to the more advanced
state of the law of war. From the freebooter at sea arose the
privateer, for the privateer is a commissioned freebooter, or
the freebooter taken into the service of the government by the
letter of marque . . . Wherever the freebooter is taken, at
sea or on land, death is inflicted upon him now as in former
times, for freebooters are nothing less than armed robbers of
the most dangerous and criminal type."
The privateer,
a kind of state-sanctioned pirate, highlights the elusive but
implacable distinction between legal and illegal combatant. The
bonafide pirate -- the genuinely "private" privateer
-- has typically been described with the same rhetoric of exceptionality
today applied to the terrorist, as
someone who, in the words of Sir William Blackstone, "is
an offence against the universal law of society," and who
"has reduced himself afresh to the savage state of nature."
It is striking to note how Article I, section 8 of the Constitution,
in two sequential clauses of unmistakable symmetry, gives to Congress
the power "to define and punish piracies and felonies committed
on the high seas, and offences against the law of nations,"
and also, "to declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water." The
archaic term "letter of marque," as Lieber's text also
indicates, refers to the practice of authorizing a naval privateer
to attack the enemies of a state and thus (according to the Oxford
English Dictionary) "to commit acts which would otherwise
have constituted piracy." In effect, state sovereignty literally
consists at once of the power to punish and to commit piracy.
Terrorism also presents the sovereign
state with an image of its own essential violence, which in turn
calls forth the violent exceptionality of the state's response.
Such
a conclusion is no mere theoretical sophistry or legal technicality,
as seen in the public discourse surrounding the "war on terrorism."
Speaking on NPR, the famous law professor Alan Dershowitz defended
the arrest of two female relatives of Izzat Ibrahim al-Duri, the
former top adviser to Saddam Hussein accused of involvement in
recent attacks on US forces in Iraq. "It's
never permissible under international law or under American domestic
law to hold an innocent person in order to put pressure on a relative
or a guilty person," Dershowitz began by conceding, "but
the United States is experimenting with what might generously
be called creative approaches to the problem of terrorist prevention."
Such "creative" approaches are justified, he goes on
to suggest, "because international law wasn't written for
terrorism." Dershowitz is quite wrong on this point as a
matter of historical fact, as the above analysis of the Lieber
Code shows. Yet his
frank embrace of this particular transgression of international
law is wholly in keeping with the underlying assumptions of that
system. Perhaps even more strikingly, New York Times columnist
David Brooks excused "the brutal measures our own troops
will have to adopt" in fighting the war in Iraq. Because
the US military is fighting people who "survive only by cruelty,"
he claimed, it will have to respond with what he frankly calls
"atrocities."
SOVEREIGNTY
AGAINST ITSELF
The act
of sovereignty that captures the Guantánamo detainees only
to push them beyond the reach and protection of the sovereign
state is the very manifestation of the existing state system and
its corollary values. Critics are confronted with a Hobson's choice
between attempting to limit or suspend the exercise of sovereignty
through increasing legal regulation or endorsing
the exercise of sovereignty as a necessary corrective to injustice
(as in the king's or executive's pardon). On this point, progressive
legal theorists have been split. But the ultimate answer cannot
lie solely in the enforcement of existing international law and
the production of yet more
international documents within the same framework, nor in the
tenuous hope for occasional exceptions to that sovereign exceptionality
that is always the essential form of sovereign power. International
law alone will never avail, and not merely because its own logic
always holds in reserve a right to the same indiscriminate violence
that it condemns in the guerrilla, the
pirate or the terrorist. Sovereignty is the principle and activity
that founds the state, and therefore constitutes its innermost
and outermost possibility. The sovereign black hole, loophole
or zone of legal limbo is foundational for the existing juridico-political
order. Even more broadly, within that order, the absolute end
of sovereignty is unthinkable. Without sovereignty, no decisions;
and without decisions, no justice.
Since
sovereignty itself is inevitable, yet particular instances of
sovereign power must still be confronted and challenged, critics
of the current situation must assume a double responsibility.
On the one hand, the present resources of national and international
law must indeed be pursued
to their limits, to discover and interpret precedents for the
urgent decisions of the day, and, more importantly, to set new
precedents for decisions still to come. But on the other hand,
since law itself cannot in principle ever be adequate to the full
enormity of Guantánamo, sovereignty
itself must be torqued in a strange reversal, and made to work
against itself. In other words, the sovereignty of strong states
with the power to decide global matters -- the sovereignty that
is, after all, finally a collective force, a power "of the
people, by the people and for the people" -- must be expended
without reserve in the name, not of law, but of justice, to the
point where the territory and its boundary trembles. Such an undertaking
will not yield a mechanism or method that might be codified, because
it will involve sovereign (and hence unprecedented) acts and decisions;
and because its goal is a justice understood as an infinite task
of thinking our relation to the Other. But as Jacques Derrida
suggests, "the fact that law is deconstructible is not bad
news"; rather, one can "find in this the political chance
to all historical progress." All this is perhaps difficult
to imagine in a world so dominated by reasons of state and the
fanaticism of borders and identities. But the urgency of the task
can hardly be overstated. At any rate, one thing is clear: at
Guantánamo Bay, as Walt Kelly
once observed, "we have met the enemy and he is us."
