class: center, middle, inverse, title-slide # Dirty Wars ## Citizenship in War and National Security ### Jack McDonald --- class: inverse # Outline .pull-left[ > Dirty wars are conflicts where one or more parties denies the political, legal, and/or moral status/standing of their opponents. How does that happen? Why is that important? ] .pull-right[ - Citizenship and Political Community - Political Emergencies - Applying Law in Theory - Administrative Violence - Conclusions and Connections ] ## Main Points A key issue in the kind of conflicts this course focuses upon is the way war/national security threats alter the relationships between individuals and their political community One way of framing this is through the unifying idea of political emergencies Understanding how and why states and their institutions apply legal concepts in practice creates a more nuanced picture of the relationship between rights and war/national security ??? --- class: inverse # Part 1: Citizenship and Political Community ??? --- # Power in Politics and Sociology > The instruments which serve authority best are those which expend the smallest amount of energy possible to produce the effects of control or domination. Olivier Razac, _Barbed Wire: A Political History_ > conceptions of power in the social sciences tend faithfully to reflect the dualism of subject and object... Thus 'power' is very often defined in terms of intent or the will, as the capacity to achieve desired and intended outcomes. Other writers by contrast, including both Parsons and Foucault, see power as above all a property of society or the social community. Anthony Giddens, _The Constitution of Society_ > For Foucault... the human body is the ultimate material that is seized and shaped by all political, economic, and penal institutions. Systems of production, of domination, and of socialization fundamentally depend on the successful subjugation of bodies. David Garland, _Foucault's "Discipline and Punish"--An Exposition and Critique_ ??? Quote from p. 852 https://www.jstor.org/stable/828299?seq=1#metadata_info_tab_contents --- # Social Objects > There are portions of the real world, objective facts in the world, that are only facts by human agreement. In a sense there are things that exist only because we believe them to exist. I am thinking of things like money, property, governments, and marriages. Yet many facts regarding these things are 'objective' facts in the sense that they are not a matter of your or my preferences, evaluations, or moral attitudes. I am thinking of such acts as that I am a citizen of the United States, that the piece of paper in my pocket is a five dollar bill... John Searle, _The Social Construction of Reality_ ??? --- # Hierarchy, Duty, and Political Community .pull-left[ - Empires - States - Nation states - ...Corporations? ] .pull-right[ Subject: a person who is under the control of or owes obedience to an abstract principle or power. Citizen: A legally recognized subject or national of a state, commonwealth, or other polity, either native or naturalized, having certain rights, privileges, or duties. Slave: One who is the property of, and entirely subject to, another person, whether by capture, purchase, or birth; a servant completely divested of freedom and personal rights. ] ??? ///right of soil vs right of blood ///duties ///conscription --- # Citizenship and Legal Rights Dimensions of citizenship - Legal status, with civil, political, and social rights - Political agency, including participation in a society’s political institutions - Membership in a political community that results in a distinct source of identity (also psychological) Republican model of citizenship - Civic self-rule, and rotation of offices - Active participation in politics/society (indivisible) - Emphasises second dimension Liberal model of citizenship - A legal status to protect individuals and private associations from interference by the state, or other individuals - Private citizenship, and largely passive ??? --- # Inequality and Social Standing .pull-left[ ![ WSPU leaders Annie Kenney (left) and Christabel Pankhurst, Wikipedia public domain](img/2020/suffragettes.jpg) ] .pull-right[ ![Martin Luther King, Jr. and Malcolm X meet before a press conference. Both men had come to hear the Senate debate on the Civil Rights Act of 1964. This was the only time the two men ever met; their meeting lasted only one minute. This work is from the U.S. News & World Report collection at the Library of Congress. According to the library, there are no known copyright restrictions on the use of this work.](img/2020/kingx.jpg) ] ??? Gender, Race, Citizenship --- # Citizens as Threats .pic60[![The Twin Insurgency](img/8/gilman1.jpg)] > States within the global political economy today face a twin insurgency, one from below, another from above. From below comes a series of interconnected criminal insurgencies in which the global disenfranchised resist, coopt, and route around states as they seek ways to empower and enrich themselves in the shadows of the global economy... From above comes the plutocratic insurgency, in which globalized elites seek to disengage from traditional national obligations and responsibilities. Nils Gilman, _The Twin Insurgency_ ??? --- # Exits from Citizenship .pull-left[ ![Title page of the German government gazette Reichsgesetzblatt issue proclaiming citizenship laws, published on 16 September 1935. Wikipedia public domain](img/2020/reichlaw.jpg) ] Nuremberg Laws, 1935: German state strips Jewish Germans of their citizenship, rendering them subjects of the state The Holocaust UNDHR, 1948: Right of asylum and right to nationality Convention relating to the Status of Refugees, 1951 (in force 1960). Convention on the Reduction of Statelessness, 1961 And yet, citizenship stripping of dual nationals, denial of citizenship to minority groups ??? Agamben homo sacer, bare life, inclusion of life within a sovereign system without political life within it --- class: inverse # Reflection Question .large[ If a dual-national citizen leaves the country to join ISIS, is it right for one state to unilaterally take away their citizenship? ] ??? --- class: inverse # Part 2: Political Emergencies ??? --- # The Rule of Law > Roper: So now you'd give the Devil benefit of law? > > More: Yes. What would you do? Cut a great road through the law to get after the Devil? > > Roper: I'd cut down every law in England to do that! > > More: Oh? And, when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast – man's laws, not God's – and, if you cut them down – and you're just the man to do it – d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake. Robert Bolt, _A Man for All Seasons_ ??? --- # Securing the State > [M]ore severe life-integrity violations should be anticipated among partly free states than in authoritarian states (more murders in the middle [MMM]). It can be inferred, in accord with previous theory, that an increase in freedom among unfree states arouses a greater expression of opposition and provokes greater state repression, leading to more intense and wider-ranging violations–i.e., massacres, calculated murders, and torture. Helen Fine, _More Murder in the Middle_ - How regimes end - Political survival - Polity survival - Institutional survival ??? --- # States of Exception ![Carl Schmitt, sketchy dude](img/2/schmitt.jpg) > Sovereign is he who decides on the exception. Carl Schmitt, _Political Theology_ ??? --- # Political Emergencies .pull-left[ Sovereign Exceptions: - States of siege - Martial law - Emergency powers ] .pull-right[ > The notion that a situation of factual danger, whereby the existence of the state is threatened, allows for the suspension of the normative universe of a rule of law is provided for in almost every account of modern lawful rule. Nasser Hussain, _The Jurisprudence of Emergency_ ] ??? Hussain quote p.16 --- # Who Enacts It? .pull-left[ > To manage the threat posed by their coercive institutitions, autocrats use a range of techniques often grouped under the heading "coup-proofing." > coup-proofed security services tend to have a _high degree of fragmentation_ ...they tend to be _more socially exclusive_. Sheena Greitens, _Dictators and their Secret Police_ ] .pull-right[ > Militarily weak and isolated, Perón had no other choice in combating subversion than to build a secret army [AAA] with police recruits under police direction. Donald C. Hodges, _Argentina's "Dirty War"_ ] ??? greitens quote from p.24 hodges quote from p.174 --- # Courts in Emergencies > in the very nature of things military decisions are not susceptible of intelligent judicial appraisal. > But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes. Robert H. Jackson, _Korematsu v. United States_ ??? Ex parte milligan Ex parte Quirin Korematsu Youngstown 1952 --- class: inverse # Reflection Question .large[ What kind of emergency powers does your own government reserve the right to implement? Are there any contentious cases of emergency powers usage in your own country that you are aware of? ] ??? --- class: inverse # Part 3: The Application of Law ??? --- # Power and International Law .pull-left[ > As a language of justification, international law is a means to articulate particular preferences or positions in a formal fashion, accessible to professional analysis... The law constructs its own field of application as it goes along, through a normative language that highlights some aspects of the world while leaving other aspects in the dark. Martti Koskenniemi, _From Apology to Utopia_ ] .pull-right[ ![The Nuremberg Trials](img/5/nuremberg.png) ![The UNSC](img/5/unsc.jpg) ] ??? Four sources of constraint and cooperation - Normative - Political/social - Resources - Strategic --- # Gaps and Silences in IHL .pull-left[ > One misses a great deal by looking only at justice. The sense of injustice, the difficulties of identifying the victims of injustice, and the many ways in which we all learn to live with each other’s injustices tend to be ignored, as is the relation of private injustice to the public order. Judith Shklar, _The Faces of Injustice_ ] .pull-right[ .medium[ - Absences of prohibition ("I didn't sign that") - Absences of enforcement mechanisms ("I'm afraid you don't have jurisdiction") - Interpretations of law ("Actually, this is an act of self-defence") - Interpretations of fact ("I'm afraid that those people are 'on holiday' in that country") - Silence of states ("I don't have to give you my opinion") - Silence of international organisations ("My patron vetoed your UNSC resolution") ] ] ??? /// --- # Necessity, Objectives, and Advantage > In splintered gardens that once grew green, on rubble where a graceful tower had stood, U.S. Marines advance under fire. Here was a paradox of war: the only way Hué could be won was by destroying it. Life Magazine, _The Battle that Regained and Ruined Hué_ > The LOAC vision of the law begins with armed conflict. It assigns military necessity and the imperatives of war-making primary, axiomatic status. > > ...IHL offers a civilian’s-eye view of war, and gives ground grudgingly to claims of military necessity. Where legal restrictions operate in the margins of military necessity under the LOAC vision, IHL strains to relegate war to the margins of peacetime rights. David Luban, _Military Necessity and the Cultures of Military Law_ ??? --- # Distinction and Classification .left-66[ > We know that in modern warfare we are not clashing with just a few armed bands, but rather with an organization installed within the population—an organization that constitutes the combat machine of the enemy, of which the bands are but one element. > > To win, we have to destroy this entire organization. Roger Trinquier, _Modern Warfare: A French View of Counterinsurgency_ ] .right-66[ ![Modern Warfare Cover](img/2020/trinquier.jpg) ] ??? --- # Proportionality and Subjectivity > Killing civilians is accepted on some level. It is planned, and it is excused when it is thought to be militarily necessary and not excessive. Further, the operation must be proportionate; the good of the military operation must outweight the negative consequences of the operation. Neta C. Crawford, _Accountability for Killing_ ??? --- class: inverse # Reflection Question .large[ Do you think it is possible for those with differing views of the role of military necessity in war to ever truly agree on judgments of distinction or porportionality? ] ??? --- class: inverse # Part 4: Administrative Violence ??? --- # Seeing National Security Like A State .pull-left[ ![Seeing like a state book cover](img/2020/scott.png) ] .pull-right[ > Designed or planned social order is necessarily schematic; it always ignores essential features of any real, functioning social order. James C. Scott, _Seeing Like a State_ ] ??? --- # The Administration of Violence Max Weber - Offered an idealised model of rational, hierarchical bureaucracy Herbert Simon - Identifies the decision-making process as the central feature of bureaucracy - Organisations make value judgements (selecting goals) and factual judgements (paths to pursuing goals) - Bounded-rationality and satisficing as forms of decision-making, efficiency is a key element of organisations James Q. Wilson - Explains organisational behaviour as interaction between rank-and-file, managers, and leaders - The observability of outputs and outcomes produces different types of organisation ??? --- # Legal Bureaucracy > The question was always: Who shall make law, and what shall that law be? The other question, how law should be administered with enlightenment, with equity, with speed, and without friction, was put aside as "practical detail" which clerks could arrange after doctors had agreed upon principles. Woodrow Wilson, _The Study of Administration_ ??? Wilson quote is from 1887 https://www.jstor.org/stable/2139277?seq=1#metadata_info_tab_contents --- # Targeting/ROE .pull-left[ ![ROE diagram taken from Corn & Corn](img/2020/roe.png) > Despite these and numerous other historical examples of soldiers applying ROE, the actual term "rules of engagement" was not used in the United States until 1958 by the military's Joint Chiefs of Staff (JCS). Geoffrey S. Corn and Lieutenant Colonel Gary P. Corn, _The Law of Operational Targeting_ ] .pull-right[ ![UK Legal diagram](img/2020/modla.png) > - Rules of engagement (when and where, and in what circumstances). > - Targeting directive (who and with what). > - Target engagement authorities, national asset approval authority, casualty threshold authorities. Ministry of Defence, _JDP 3-46: Legal Support to Joint Operations_ ] ??? MOD list of authorities --- # Bureaucracy and Rights > There is significant turnover in the Civil Service, so people might not gain expertise and knowledge of an entire policy area. When the institutional memory is missing, there is less understanding of the past to inform the policy of the future. The lack of corporate knowledge and understanding of the historical context was an issue staff at all grades raised repeatedly in interviews for this review. As one senior official said: > > "One of the notable things… about when Windrush broke was [that] we all had to go and educate ourselves about historic legislation… No one knew off the top of their head what the 1971 Act said, what the rules [were] about British colonies that got independence and what happened to people from those colonies… all of that was 30, 40 years ago. Well, it’s still live – it still matters but nobody had thought about that for a very long period of time." Wendy Williams, _Windrush Lessons Learned Review_ ??? --- # Administrative Exceptions > Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process. Eric Holder, _Speech at Northwestern University School of Law_ > Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them. Stephen Colbert ??? --- class: inverse # Reflection Question .large[ Are the range of issues affecting the legitimacy of a national security organisation's decision-making really so different from general problems of public administration? ] ??? --- class: inverse # Part 5: Conclusions and Connections ??? --- # Key Issues .large[ It is impossible to avoid the asymmetries of power in defining what rights matter, whose does not, and why The bureaucratic/administrative level of war and national security is where all the theoretical issues become practical ones, almost by definition People who ignore the role of bureaucracy in war are missing a significant source of explanation of state behaviour in conflict ] ??? --- # Key Questions .large[ What rights do you have in your political community, and how equal are they with everyone else living in the same territory? Is it possible to administer law fairly in conflict? How and why do you think power at the international level shapes state behaviour at the bureaucratic level? ] ???