First, I am very grateful to the organizers and faculty of the Law and Society Association’s Graduate Student Workshop, which wrapped up on Wednesday. It was a terrific and inspiring program—I highly recommend it to other graduate students who do what I will affectionately call “law-and-blank” research.
Second, I attended several great panels during Days 1 and 2 of the LSA Annual Meeting (see Twitter at #LSA2011), but will detail just one of my favorites for now. Yesterday’s panel Exploring the Discontinuity in the War on Terror at the Margins and Beyond featured exciting papers by Paul E. Amar, Asli Bali, Darryl Li (a.k.a. @abubanda), and Wadie Said, with commentary by Sudha Setty.
Bali presented “Subordination by Law? Discretion and Discrimination against U.S. Muslims beyond September 11th,” which argued that since 9/11, executive branch powers have expanded alarmingly to create a de facto preventive detention system for Muslim Americans, dodging anti-discrimination laws. Bali described, among other things, two supermax-style prisons that hold terror suspects, 95% of whom are Muslim. (The rest are called “balancers,” meaning they are there to prevent—laughably—suggestions of religious or ethnic profiling.) She also points out that counterterrorism laws have effectively added aggravating factors to many minor crimes solely because the offender is Muslim; credit card fraud, for instance, has a tendency to become a terrorism-related felony if committed by a Muslim.
Li’s paper, delivered by Bali in his absence, examined “Global Civil War and American Power.” Li argues that the Global War on Terror (GWOT) operates largely outside the existing law of armed conflict, constituting a sort of “global civil war” in which US power is projected through weaker states and non-state actors. He eloquently refers to this as a “haunting of sovereignty” that does not fit traditional paradigms of either international or non-international armed conflict. Li’s evocative language and creative analysis can also be seen in his recent article, “Hunting the Out-of-Place Muslim,” which demonstrates how Muslims’ physical mobility is constructed as threatening and aberrational.
Amar’s paper, “The Human Archipelago: Human-Security States, Sexuality Politics, and the End of Neoliberalism,” traced the interplay between stereotypes of Arab “timebomb” masculinity and UN-style feminism up through the recent Egyptian revolution. Said’s paper, “The Message and Means of the Modern Terrorism Prosecution,” discussed the U.S. Supreme Court’s exceptional treatment of terrorism to contextualize Holder v. Humanitarian Law Project (2009), which codified a broad interpretation of the 2007 material support ban.
This weekend I attended (and live-tweeted) “Law and War: An International Humanitarian Law Workshop,” a two-day training for law and graduate students. It was held at the University of Virginia School of Law and co-sponsored by the ICRC, the American Red Cross, and the U.S. Army’s JAG School.
Among the highlights was Kenneth Anderson‘s presentation on the use of drones and targeted killing as part of the allied counterinsurgency in Afghanistan and Pakistan. Anderson raised some interesting conceptual issues about contemporary warfare: Does war have boundaries? When an armed conflict moves from one location to another, which laws of war govern? Is there, in Anderson’s words, a “legal geography” of war?
The law of armed conflict (LOAC) is based upon classification of conflicts, starting with the distinction between international (state-on-state) and non-international (all other) armed conflicts. Civilian protections and combatant privilege don’t kick in until a conflict has met the threshold for either category, and the rules differ substantially between the categories. Consequently, location and intensity of fighting as well as identity of the participants are key to a LOAC analysis.
A common view, according to Anderson, is that armed conflict is located wherever its participants are. If an armed conflict authorized to take place in Afghanistan spreads to Pakistan, say, through the use of U.S. unmanned aircraft (drones), it is unclear which, or whether, LOAC rules apply. And if the U.S. were to, say, have the CIA rather than uniformed armed forces control those drones, it is unclear whether the actions even fall under the umbrella of LOAC. If LOAC does not apply, then what law governs? Is the U.S. operating in a legal void?
This is one example of how modern warfare, with its fuzzy geographic boundaries and blurred distinctions between soldiers and civilians, confounds LOAC.
My interest, as a student of literature, lies in how we conceptualize and narrate war when the traditional elements of a war narrative no longer exist. Where is war set? What is a front line? Who is a combatant and who is a civilian? To the extent that LOAC follows entrenched understandings of war, sovereignty, and combatant status, it is a window into the structure of the war narrative. When war as the law describes it ceases to resemble war on the ground, interesting things happen to the stories we tell about war. More to come on this.