Following up from my previous post (not war and the not law) I now want to make a more substantive point about the issues raised by the execution memo.
Before I do: some noteworthy related news. Ahead of John Brennan’s confirmation as the head of the CIA today, the White House has bowed to pressure from Congress and has released – with immediate effect – the full version (50 pages) of the short-hand memo that we saw earlier this week. For details about what this does and does not entail see the NYT here, but most importantly this is not a public release. Rather, the memo(s) will be given to select members of congress who belong to two Congressional Intelligence Committees (whatever they are…), for their consideration. In a sense it is a step in the right direction, but many will have the sense that it is too little too late: and when I say this, we should remember that the policy began in 2002 and has therefore been beyond judicial oversight for over a decade. Anyone claiming that this is a victory for the law should not forget this decade of darkness, and none of us should be deluded into thinking that the policy is now transparent. Brennan’s grilling today will be interesting (see legal scholar Mary O’Connell’s predictions here), but he is a master of deception and we should expect nothing less than a wholesale defence of drone warfare – he has, after all, been one of the most important lawyers involved in ‘advising’ Obama (Chris McGreal at the Guardian has an interesting character assassination here). As I’m finding in my own work on military lawyers, advisory opinions sometimes blur with actual decision making practices, granting lawyers like Brennan much more power than their formal job title would suggest. His new job title will no doubt make him even more formidable: watch this space
As I mentioned in the previous post, the memo is not about U.S. citizens alone; but to push the boat out a little further I want to venture the claim that the crux of the matter is not about citizens – U.S. or otherwise – at all . Rather, it is about geography: specifically it is about putting forward a legal thesis which enables and justifies the expansion of armed conflict (that is war) to anywhere – or rather, everywhere. This thesis is not new, yet it is still by far the most disconcerting aspect of the memo and of Obama’s global targeted killing war. The memo notes:
Any [lethal] operation would be part of [a] non-international armed conflict, even if it were to take place away from the zone of active hostilities […] the AUMF [Authorization to use Military Force] does not set forth an express geographic limitation on the use of force it authorizes. […] none of the three branches of the U.S. Government has identified a strict geographical limit on the scope of the AUFM’s authorization ” (p.3)
“If you look at the memo … there’s no geographic line […]The Obama administration is making, in some ways, a greater claim of authority [than President Bush]. They’re arguing that the authority to kill American citizens has no geographic limit.”
He is right of course, but what I think is even more interesting is the legal preparation and groundwork done for many years now to make this geographically unlimited war possible. The ‘Everywhere War’ identified by Derek Gregory two years ago has been underwritten not only by defensive legal strategies (the speeches, the memos), but by an offensive and pre-emptory legal discourse. This only confirms Geographer John Morrisey’s thesis that we would do well to examine modes of ‘forward juridical warfare’ (paper here), which he defines as the:
“seldom-discussed legal strategy [which] conditions and protects the US military in ‘offensive’ mode, [and which] operates at the national and transnational scale, and involves the careful legal designation and protection of US military personnel in forward deployed areas” (p. 280)
The difference, of course, is that Morrisey was concerned with operations bases, troops and boots on the ground. The forward juridical warfare I am about to outline takes such laws and extends them vertically: it enables the deployment of drones in the air and intelligence on the ground and thus links the vertical with the horizontal (for further elaboration of which see Eyal Weizman’s compelling ‘politics of verticality‘ at Open Democracy)
The unwriting of the geographic line which becomes officially visible (or invisible?) with the memo this week is the work of many clever hands: the legal scholars and the lawyers discovered geography. For a decade legal scholars and lawyers have been debating whether there is, as Kenneth Anderson puts it, a ‘legal geography of war’ (paper at SSRN here). Anderson frames his discovery of geography around a series of tantalizing questions:
“Where does the targeting take place and does that matter? Is there built into the concept of war some notion that there is a geography that attaches to it, and that an armed conflict is limited to theatres of conflict , zones of conflict, battlefields, or alternatively does it range and follow where the participants go. So in other words the question [is] whether you think the legal geography is relevant.”
Anderson is one of the leading legal scholars on this question. He’s so good that the House of Representatives and Obama invited him to give his legal opinion on the use of drones back in 2009. According to a senior U.N. representative who preferred not to be named Anderson and a number of other scholars at the Hoover Institute are paid handsomely to invent what Anderson calls “plausible, if not persuasive” legal theses for the Obama administration. By 2011 Anderson has found answers to his quest to understand the legal geography of war. It turns out that
“we have swung full circle in the past decade, arriving back at the traditional view that there is no legal geography of war beyond the conduct of hostilities[…]” (p.16).
Except that this isn’t quite the ‘traditional’ view Anderson claims it is; in-fact it is a radical departure from anything resembling a traditional view. Such arguments really go back to Bush, and especially the (in)famous AUMF passed by Congress on September 14 2001 (important side note: Juan Cole points out that the AUMF is unconstitutional). At the time, Condoleezza Rice spoke of a ‘new kind of war’ that renders the Geneva Conventions irrelevant and “quaint” (quoted in Alex Lubell, p. 121). Yuval Shaney, across the water in Israel wrote of the “need to ‘construe [IHL] in a realistic and flexible manner, so that it adapts itself to changing realities and to new challenges” (quoted in Lubell, p. 126) and in an almost melancholic way Toni Pfanner (of the ICRC) opined that if “wars between States are on the way out, perhaps the norms of international law that were devised for them are becoming obsolete as well” (Quoted in Benvenisti, p 340).
But by today these vague generalisations about the new war/new law phenomenon have been made into concrete legal theses. Legal scholar Laurie Blank, for example has expressed a need to move away from traditional conceptions of ‘battlefiled’ to something called she calls the ‘zone of combat’. But what does it mean? Blank defines the ‘zone of combat’ expansively as “anywhere terrorist attacks are taking place, or perhaps even being planned and financed” (p. 4). Indeed, she goes on to claim that a “war against groups of transnational terrorists, by its very nature, lacks a well-delineated timeline or a traditional battlefield context […] ” (p.4). The war cannot, in her view be limited to this static thing called the battlefield; war has become dynamic. Just as the terrorists are nomadic and respect no geographical borders, so must the strikes which are necessary to liquidate such threat(s), for as she concludes in no uncertain terms, “If the zone of combat is limited geographically to certain areas, then this member of al Qaeda can avoid being targeted—and thus regain civilian immunity, in essence—simply by crossing an international border even while remaining active in a terrorist organization engaged in a conflict with the U.S” (p. 26).
The armed conflict in this account is not limited in any meaningful geographical sense; it follows the terrorist wherever s/he may go – or ‘even’ as Blank puts it, to the places terrorism is planned and financed. Given the phenomenon of what’s called ‘homegrown terrorism’ are we to assume that ‘hostilities’ extends into the heart of the U.S.? Absolutely. And given the globalised network of capital, investment and money flows, does the war on terrorism reach into the high-street banks and into the ‘civilian’ homes of those, thousands of miles away from ‘hostilities’, whose money has gone toward financing terrorism? It is safe to assume so, I think because where there is no ‘legal geography of war beyond hostilities’, and when those ‘hostilities’ transmogrify into unlimited geographical warfare there is no beginning or end – front or back – to the battlefield.