Resetting Theory: rt021
Date Published: 5/18/2010
Arthur and Marilouise Kroker, Editors


Mechanisms of Power in the Age of Terrorism

Carl Kandutsch

Napoleon began the war with Russia because he could not resist going to Dresden, could not help his head being turned by the homage he received, could not help donning Polish uniform and yielding to the stimulating influence of a June morning, and could not refrain from giving way to outbursts of fury in the presence of Kurakin and afterwards of Balashev ... Alexander refused all negotiations because he felt himself personally insulted... And in the same fashion all the innumerable individuals who took part in the war acted in accordance with their natural dispositions, habits, circumstances and aims ... Providence compelled all these men, striving for the attainment of their own private ends, to combine for the accomplishment of a single stupendous result, of which no one man (neither Napoleon, not Alexander, still less any of those who did the actual fighting) had the slightest inkling.

Tolstoy, War and Peace, p. 810.

One of the persistent themes in Tolstoy's War and Peace is its implication that history is made by war, and wars are fought not as a means of resolving international disputes or to achieve identifiable national objectives, but rather as a coming together of innumerable, mostly irrational localized forces operating in varying degrees of tension, harmony, coincidence and conflict with each other, far beyond the ability of any human mind to comprehend or control in the unfolding.

Tolstoy's conception, hatched at the end of the great century of crowds and collective ideologies, goes a long way toward explaining the persistence of wars in the 20th century and beyond (our own political leaders being no less subject to the quirks, temper tantrums and vanity than were Napoleon and Alexander), but war is still conceived of largely as a matter of borders -- the defense and the piercing of borders -- and of national sovereignty. At the dawn of the new century, the practice of globalization makes it difficult to think about war in terms of national borders; in fact, it may be more accurate to conceive of war as one medium by which the concept of borders -- and with it, the notion of national sovereignty -- are made increasingly irrelevant. Today, the function of war is not to defend the State against external enemies (freeing the State to, as it were, carry on its normal activities in peace), because the prosecution of war has become a normal function of State governance, like collecting taxes, enacting laws or compiling the census. The wars of today and tomorrow are conceived as globally-expanded policing activities intended to, among other things, regulate, discipline and pacify populations in far corners of the globe, and are sold to the public as ways of providing "security" -- an ephemeral and infinitely malleable concept. But if war-making is normalized, what then of war's opposite, namely, peace?

1. The Global War on Terror and the Security State

In the United States in 2009, national leaders as apparently different as G.W. Bush, the Texas cowboy, and Barack Obama, the black Chicago community organizer, are united in their pursuit of the "Global War on Terror" ("GWOT"), even if the latter prefers a different brand name. To imagine the contemporary United States not at war is to imagine the bizarre, the anomalous, and from the perspective of perpetual war-making, the GWOT is ideal: The enemy is not a country, a government, or even a recognizable ideology or group of people, but an abstraction -- terrorists or even more vaguely, "terror" per se. Because they designate an idea or essence rather than a thing or even a tactic, "terror" and its grammatical variants should be written with a capital "T".

From the perspective of the GWOT, the battlefield is the entire planet, perceived as Begin perceives the Middle East -- a place in which we find "numerous political volcanoes, randomly distributed in space, which violently erupt, randomly in time." [1] It is a world in which violence erupts randomly, which is to say, a world of chaos, a planet fraught with a kind of instability that can never be resolved because it is inherent, like "Evil" in a fallen world. Considered as a battlefield in the War on Terror, the world is perceived through a religious lens -- not as a historical phenomenon, subject to causal analysis and explanation, but as a totality, accessible by means of faith, and knowable, if at all, as a kind of revelation.

Extraordinarily, the United States Congress has given legal sanction to the transcendental narrative of Terror, having authorized American Presidents to go after the "bad guys" wherever and whenever they may appear, and it is assumed that the conflict will be "generational", extending to the furthest reaches of the globe, without regard for "quaint" notions like international borders, national sovereignty or the rule of law.

Speaking at a West Point graduation ceremony in 2004, Donald Rumsfeld made the point explicit -- we face a "global insurgency" that is both geographically ubiquitous and temporally unlimited. Despite overthrowing terrorist regimes in Iraq and Afghanistan and liberating 50 million oppressed people, the struggle has not been won; "... despite these successes, the truth is we are closer to the beginning of this struggle, this global insurgency, than to its end ... They seek no armistice, have no territory to defend, they have no public to answer to ... They threaten us with shadowy networks not easily weeded out ... A terrorist needs to succeed only occasionally, but as defenders, we need to be successful always ..." [2]

Rumsfeld's reference to the enemy as the "global insurgency" is only slightly more revealing than the deliberately obfuscating term "terrorism". The word "insurgency" means a popular (non-state) uprising or rebellion against an established authority. It suggests a population that cannot be managed or controlled. Therefore, Rumsfeld's message to neophyte U.S. military officers was that their job will be to put down an unending series of popular rebellions against the authority of the United States all over the globe. It may be helpful to posit that the "global insurgency" consists of unwanted populations or surplus humanity that, in an unprecedented mass migration to impoverished urban peripheries surrounding the world's megacities, now outnumber the earth's rural population for the first time in human history. [3] Perhaps the GWOT reflects a perception on the part of the world's owners that the impoverished masses have become unmanageable, and the problem will grow.

Clearly, the GWOT has little relationship to war in the traditional sense of a conflict between nation-states, usually involving control over specific territory and involving the defense or piercing of national borders. For this reason, and because the fight against the global insurgency is by its nature unlimited in both geographical and temporal scope, it sounds strange or awkward when politicians talk about "winning" the War on Terror. The GWOT cannot be won in any ultimate sense -- the sense in which victory brings peace -- not necessarily because the global insurgency can never be defeated (although that is probably true), but because the War on Terror is not meant to be won. The War on Terror is meant to be fought, and to produce and perpetuate all that mobilization entails, in particular, the molding and sustenance of a war-based economy, a thoroughly militarized society cultivating a warrior culture, and a political system revolving around "national security" at the expense of nearly every other policy priority. However, because fighting the GWOT is as much a matter of bureaucracy as soldiering, it may be more accurate to say that the GWOT is to be administered.

2. Do You Feel Safe?

Although American and European politicians still like to talk about "winning" the War on Terror [4], they rarely speak of "peace," which seems an increasingly anachronistic notion. Instead, the question addressed to the American public around election time is: "Do you feel safe?" The question to be decided in national elections is, "Would America be safer under the leadership of candidate A or candidate B?" The theme is security, not peace, or rather, "peace" has come to mean nothing more or less than a feeling of relative security -- when commuting to work, boarding an airplane, taking an elevator in a tall building, attending a concert or sporting event, visiting the shopping mall, packing the kids off to daycare, etc. The existence of the Security State seems to imply that its citizens are destined to live in a more or less normalized state of enduring personal insecurity that waxes and wanes as the government's daily "threat level" is coded between red ("severe") and green ("low"), on a scale in which yellow appears at the mid-point, designating "elevated" as the average level of anxiety appropriate to ordinary people on an ordinary day.

The Security State's characteristic response to seemingly irrationally-timed eruptions of insurgent violence is to launch limited military "operations", "incursions", "surges" and other "security measures" designed to put down the insurgencies and pacify local populations, if only temporarily. But these operations are calculated to effect permanent changes in the perception of space and of time. On the one hand, America's simultaneous military operations on the War on Terror's multiple "fronts" (Iraq, Afghanistan, Pakistan, Somalia, Yemen, Palestine, etc.) seem calculated to render the notion of geographical borders forever irrelevant. On the other hand, these simultaneous and ongoing operations ensure that military conflict does not enter America's collective life as a traumatic interruption from outside, disrupting the flow of time. Rather, low-level conflict persists in time as an unfolding series of threats, warnings, emergencies, alerts, and counter-insurgency operations, all relayed into American living rooms and projected onto millions of household video monitors (cable and satellite-networked television sets) as a seamless fabric of more or less manageable crises, punctuated by commercial seductions, expert analysis from a growing subculture of counter-terrorism professionals, and "reality"-based regularly scheduled programming.

Ordinary life in the Security State is conceived as a protracted exercise in threat-management, based on a kind of circular logic of insecurity: If the State exists for the primary purpose of providing security, the state of insecurity must be continually present in order to sustain the State, implying that the State's security measures must never be wholly successful (whatever that might mean); hence, the never-ending need for additional security measures. This logic dictates that the projected threats to domestic security must constantly be hyped and inflated, in order to ward off the boredom and indifference associated with television re-runs, and the government's response to those threats must be continually escalated.

For this reason, Americans must continually be reminded, lest they forget, that "we are at war", although that fact does not imply that normalcy is significantly interrupted. [5] We are encouraged to march quietly along through the airport checkpoints as full-body cavity searches are silently executed, implying that acceptance of our fate as potential suspects in connection with crimes not yet committed is a small price to pay for the government's provision of security from random attack. Meanwhile, government bureaucracy focused on security issues, along with various sectors of the global security industry, continues to absorb ever-growing portions of the public wealth, with no end in sight. In 2006, USA Today reported that governments and business spent about $59 billion on anti-terrorism measures during that year, and the cost is surely much greater today. [6]

Conflict, and the insecurity it brings, must be normalized, but never to such an extent that it can be safely ignored. As Madison Avenue advertising executives have known for years, the consuming public must be kept in a "buying mood."

3. Terrorism and Metaphysics

Judeo-Christian morality going back at least to the New Testament is based on the principle of reciprocity -- the idea that participants in a moral dispute ought to accept a particular resolution of the dispute to the extent that they accept the norms that are applied in order to arrive at that particular resolution. A person who aggressively attacks another person has no moral standing to object to the other person's use of defensive action to repel the attack -- assuming that both exist in the same moral universe in which the principle of self-defense is accepted as universally applicable.

Language provides innumerable resources by which ordinary moral responsibilities may be evaded, for example, by substantializing, mystifying or "essentializing" actions or objects as a way of avoiding an honest investigation of phenomena. [7] The popular political discourse surrounding "Terrorism" provides a strong example of this kind of evasion. Terrorism is invoked as a metaphysical essence; the word is used to cast out and banish the other from the speaker's moral universe, and thereby, to suspend the moral principle of reciprocity.

Considered as an emanation of a transcendent essence, there is no need for a coherent definition of the word or for any empirical investigation of acts that are designated as "terrorism." In fact, attempts to understand or explain the phenomenon are seen as a kind of appeasement that only encourages and perpetuates the evil sought to be understood. Thus, according to an Israeli government official, "Whether in New York or Washington, Bali or Moscow, Mombasa or Beit She'an, terrorism is indivisible, and all attempts to understand it will only ensure its continuation"[8] (emphasis added).

"Terrorism" is therefore a kind of deity, and human attempts to understand its origins amount to blasphemy. The point of talking about Terrorism is to invoke this deity and to profess one's faith in the cause of fighting it.

Consider, for instance, the recent controversy focusing on Army Major Nidal Malik Hasan, who on November 5, 2009 shot and killed eleven military personnel and one civilian at the Fort Hood army base in Texas. Immediately following the event, the media launched a national debate regarding whether or not the shooting qualified as "terrorism". The puzzling aspect of this debate concerned its purpose: Assuming that Hasan is a terrorist and that the mass murder was a terrorist act, what then? Those involved on both sides of the debate seemed to avoid describing with any specificity the consequences that would follow from their respective conclusions.

Although the pro-Terrorist side (led by Senator Joe Lieberman of Connecticut) did outline some far-from-original lessons to be learned (e.g., the U.S. Military should investigate any possible ties of its Muslim members with known Terrorists, more racial profiling is needed), these lessons seemed a bit disappointing, given the vehemence with which the pro-Terrorist position was argued. It is as if the designation of Hasan as a Terrorist was not a piece of additional data to be considered in comprehending the perpetrator and his actions, but provided, in and of itself, a comprehensive understanding of the man, his motives, the event and all of its implications.

Specifically, it appears that for the pro-Terrorist faction, the point of characterizing Hasan as a Terrorist was precisely to preempt or put an end to any empirically-based consideration or discussion of the perpetrator as an individual, his possible motives, the possible psychological effects of his work as a psychiatrist providing therapeutic treatment for veterans of America's war in Afghanistan, his views on that war, or as an alienated and unhinged "lone gunman" -- the kind of considerations that are usually at the center of a criminal investigation. What seems to be at stake is this: To the extent Hasan is a Terrorist, he is not an individual, but the Other, and no further criminal investigation is needed, because once the label is affixed, everything worth knowing is already known: Hasan's goal was to kill as many Americans as possible, and to die in the process. The attributes of the Terrorist are known a priori because they flow from and simply manifest the Terrorist-essence. All we really need to know is that Hasan allegedly uttered the words "Allah Akbar" as he launched his attack.

In the discussion surrounding Major Hasan, the word "terrorist" functioned like a taboo with super-linguistic power. In particular, for the proponents of the Terrorist designation, attempts to discuss Hasan's possible motives were treated not simply as superfluous, but as outrageously unacceptable, an almost treasonous kind of "appeasement" or sacrilege, as expressed by Floyd and Beth Brown, who emphasize the power of words like "terrorism" and "Islamic jihad":

To Obama, terrorism and Islamist jihad are words stricken from his presidential lexicon. Without these words, you cannot adequately understand these brutal events on America's homeland. Jihad flows from very specific Islamic teachings. This attack was a premeditated act of unspeakable terrorism, including the ritual pre-jihad (pre-attack) cleansing routine caught in part on convenience store cameras. Politically correct denial of Islam's role in this bloodletting is foolish and dangerous. And Obama and his administration will not be able to protect us against further similar acts if they continually refuse to admit reality. [9] (Emphasis added.)

According to the authors, to speak of the Fort Hood rampage without using words like "terrorism" and "Islamic jihad" is to deny its "unspeakable" nature, implying that these words -- speaking the unspeakable -- operate essentially outside the realm of ordinary rational discourse.

If Hasan is a Terrorist, then America's faith, threatened in the eight long years since September 11, can be restored, or at least declared -- the existence and reality of the Terrorist Threat are confirmed right here, "on American soil", and we must respond. Therefore, the War on Terror is real and exists. For years, America's armchair warriors against Terror have lamented the tendency of flaccid, passive Americans to forget the principal lesson of 9/11, which is our state of enduring vulnerability and insecurity, and consequently, the compelling need for additional State-sponsored security measures. Hasan, and following him, the Christmas Day "crotch bomber", provided deliverance from our complacency and sloth, and thus the possibility of redemption. It is as if in the fallen world of the post-Christian West after the end of the Cold War, only Terrorism offers the hope of spiritual renewal and the restoration of faith to its rightful place in national life.

Those who would deny the transcendent force of Terrorist discourse are said to engage in "moral equivalence" -- the assumption that the bad things we (i.e., the West) do can legitimately be compared to the bad things they (i.e., the Oriental Terrorists) do, and if our acts can be compared to theirs, it follows that we live in the same moral universe as they do. To engage in moral equivalence is to deny "American Exceptionalism".

4. American Exceptionalism; Rules and Exceptions
a. Moral Equivalence and Exceptionality

Richard Landes, an associate professor of history at Boston University and author of the popular blog "Augean Stables", refers to "moral equivalence" as "pathology of self-criticism" and describes it thus:

A pervasive argument appearing in the post-colonial paradigm is that of "Moral Equivalence." In the case of Islamic terrorism the dynamics of moral equivalence can be seen among some figures of the western intelligentsia in their vociferous moral indignation at the behavior of Western nations that, they allege, led to acts of terror, and their understanding attitude towards the terrorist acts themselves. Even if they do not intentionally excuse terrorism, such writers produce the unhappy consequence of explaining Islamic terrorism in terms of "Western misdeeds and faults," and of framing the debate in terms of "what the West did to deserve such attacks" and, therefore, reverse the moral equation. The West's "wrongs" come to be seen as more reprehensible than the "reaction" (however "harsh and "inexcusable") by terrorists. The easy moral challenge is: "Are we not hypocrites, when we do the same thing?" [10]

Moral equivalence is false, according to Landes, because (emphasis added) "there is something different and precious about the society of tolerance and human freedom that we are trying to build." This difference -- the "American Exception" -- is denied in the "prevalent tendency in the Western media to adopt an 'objective, impartial' even-handed approach to situations and conflicts where open civil societies face their enemies, such as Islamists."

American Exceptionalism is not difficult to grasp: "Our country has always been exceptional. It is freer, more individualistic, more democratic, and more open and dynamic than any other nation on earth. These qualities are the bequest of our Founding and of our cultural heritage. They have always marked America as special, with a unique role and mission in the world: as a model of ordered liberty and self-government and as an exemplar of freedom and a vindicator of it, through persuasion when possible and force of arms when absolutely necessary." [11] The United States is unique -- uniquely virtuous -- not by virtue of any finite set of empirically verifiable features, but a priori, as a matter of principle or article of faith. Because America's exceptionality is not empirically verifiable, it is always subject to doubt, i.e., under attack and threatened.

It is abundantly clear that what bothers writers like Landes about "moral equivalence" is not so much the specific conclusions drawn from moral analysis of particular events within the moral equivalence framework (e.g., Noam Chomsky's alleged conclusions regarding 9/11 that "America had it coming" or that both the Palestinians and Israel are guilty of terrorism) as the framework itself, specifically, the idea that a "society of tolerance and human freedom" (us) can be compared with Islamic terrorists (them) at all; arguments based on moral equivalence are "pathological" because they assume the existence of a single moral spectrum that includes both enlightened Western democracies and hate-filled terrorist fanatics. In other words, moral equivalence is abhorrent to Americans like Landes because it puts into question American Exceptionalism. Because it is not established by evidence or argument, to question American Exceptionalism is per se to deny it.

But if, as Landes implies, America's uniqueness originates in its embodiment of universal notions of "tolerance and human freedom" -- "universal" means, applicable in all cases -- in what sense is America "exceptional"? Do not the universal values aggressively propounded in American foreign policy imply that American actions must be judged according to the same criteria that are applied to other countries, people and groups? Otherwise -- that is, if American values do not express universal human truths, and are not to apply in all cases -- in what sense can America be considered "exceptional"? Which is to say: American Exceptionalism has the structure of a paradox.

The intellectual dissonance associated with paradox is reflected in the rhetoric of Exceptionalism, a rhetoric characterized by a strong sense of hyperbolic outrage.

Judge Richard Goldstone's 575-page, meticulously documented report on Israel's recent invasion of the Gaza Strip epitomizes the moral equivalence argument in statements like this: "There is evidence that both Israeli and Palestinian forces committed war crimes in the recent Gaza conflict."

Now consider Melanie Phillips' response to Goldstone's finding:

With this cynical veneer, Goldstone does worse even than establish moral equivalence between the instigators of genocidal violence and those who were attempting to defend themselves against it. He presents Israel, the victims of such aggression, as war criminals and the Palestinians, the actual instigators of terror, as its victim. This is not moral equivalence but moral inversion. [12]

Phillips' response is revealing because it is so disproportionate to the Goldstone statement to which Phillips responds: How exactly does a bland finding that "there is evidence" of crimes committed by both sides amount to a "cynical veneer" and an "inversion" or our moral concepts? For Phillips, the scandal lies in the idea that Islamic Terrorism, and the appropriateness of Israel's response, ought or could be subject to empirical investigation at all, including the gathering of facts, the weighing and interpretation of evidence and the drawing of rational conclusions based on evidence -- because empirical investigation of the sort reported by Judge Goldstone implies that Palestinians and Israelis exist in the same moral universe, are part of the same historical narrative, and are subject to the same moral and legal standards. The transcendental nature of the Terrorist is unacknowledged.

In this sense, "moral equivalence" is a scandal and an outrage exactly because "moral equivalence" means moral reasoning in the most traditional Judeo-Christian sense -- the even-handed application of universally applicable moral principles, including the principle of reciprocity, to well-known facts interpreted on the basis of evidence. The application of Western moral principles in this context is scandalous because it implicitly denies the metaphysical status of Terrorism, treating insurgent violence as just another tactic utilized in war-making, and the Terrorists themselves as if they were potentially rational actors existing in a particular historical and political context.

By debasing the idea of Terrorism, moral equivalence threatens American Exceptionalism: To the extent that American Exceptionalism is based on America's embodiment of enlightenment values that are universal, then America cannot logically be exempt from the moral criteria that are used to judge the actions of others, that is, from judgments based on moral equivalence. To that extent, however, America is not really exceptional at all, not in the sense of being exempted from the rules it enforces. From which one might conclude that what is really at stake beneath the populist rhetoric of American Exceptionalism is an assertion of America's right and ability to enforce rules without ourselves being subject to those rules -- suggesting that the sovereign right to enforce the state of exception on subject populations is a fundamental modality by which political power is exercised by Western-style democracies in the age of global economic liberalism.

b. The State of Exception

It is the temporary character of security measures that allows the GWOT to extend indefinitely in time -- the end-point always postponed -- and further allows those security measures to escape the legal framework that otherwise provides relatively clear distinctions between acceptable and unacceptable ways of war-making. As Adi Ophir remarks regarding Israel's "war on terror":

Temporariness is now the law of the occupation ... temporary takeover of Area A, temporary withdrawal from Area A, temporary encirclement and temporary closures, temporary transit permits, temporary revocation of transit permits, temporary enforcement of an elimination policy, temporary change in the open-fire orders ... When the occupier plays with time like this, everything -- everything that moves, everything that lives -- becomes dependent on the arbitrariness of the occupier's decisions ... This occupier is an unrestrained, almost boundless sovereign, because when everything is temporary almost anything -- any crime, any form of violence -- is acceptable, because the temporariness seemingly grants it a license, the license of the state of emergency. [13]

In the post-colonial era, Western-style democracies are able to rule over subject populations by propounding a rule of law that is fluid and dynamic, and therefore subject to the interminable and arbitrary eruption of exceptions that may be invoked in the sovereign's absolute administrative discretion, all in the name of "security". It is the temporariness of any particular security measure that allows it to be implemented as an exception to law or standards that are otherwise generally applicable. Operating under a regime of exceptionality, State power is exercised by means of a regime of legalism, which encompasses both enforcement of the law as well as its suspension. The State reserves to itself the sovereign right to both impose and suspend the law as necessary to deal with an array of perceived threats, crises or emergencies, allowing state violence to be used on an arbitrary basis, without forfeiting the state's stature as a liberal democracy acting within the framework of legality. [14]

One permutation of legalism was recently articulated by Colonel Daniel Reisner, former head of the IDF's Legal Department, as follows (emphasis added): "If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries ... International law progresses through violations. We invented the targeted assassinations thesis [that extra-judicial killings are permitted when it is necessary to stop a certain operation against the citizens of Israel and when the role played by the target is crucial to the operation] and we had to push it. Eight years later it is in the center of the bounds of legality." [15] In the state of exception, the law is systematically and deliberately violated, in the name of the law, such that the law is extended to encompass and ratify the violation. The operating principle of legalism implies that the rule and its exception are indistinguishable.

While Israel has used the occupied territories as a kind of Petri dish for experimenting with regimes of legalism, the Israeli model has been largely adopted by the United States since September 11, 2001. "The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law." [16] Regimes of legalism are characterized by the replacement or transformation of the "rule of law" into a regulatory scheme under which the law may be violated, suspended, deferred, excepted, evaded, annulled and otherwise manipulated on an arbitrary but absolute basis, all in the guise of legality and in the name of "security", so as to fundamentally alter the relationship between the sovereign power and those subject to its rule. When the law is or may be suspended or annulled at any time, those subject to the law's rule can have no fixed expectations regarding its enforcement either against them or on their behalf, and in this sense, aren't so much citizens as subjects, ruled not by consent but by the ever present specter of force. [17]

For example, under the legal authority granted by the USA Patriot Act, the United States has imprisoned hundreds of "unlawful combatants" in the Guantanamo Bay facility while suspending or denying them all legal rights, principally, the right to a trial. Held indefinitely without charge in legal limbo, detainees at Gitmo, Bagram in Afghanistan, and an unknown number of secret off-shore American prisons around the globe are routinely tortured, often by private security contractors operating with full or partial legal immunity for their actions. If thumbscrews are considered to be illegal, then CIA interrogators will use "soft" forms of torture and "enhanced interrogation" methods such as sleep deprivation and force-feeding, the legal status of which remain uncertain. Meanwhile, President Obama has announced that the military commissions used to prosecute terrorism cases will be reformed to ensure due process, but he has simultaneously indicated that if a defendant were somehow found not guilty, the President's "post-acquittal" detention powers would be used to keep the prisoner locked up indefinitely -- evincing not such much a rule of law as a regime of legalism. And if any of these anti-terrorism measures are legally challenged, Obama may invoke the constitutionally spurious doctrine of "sovereign immunity", a kind of blanket exemption that would provide legal authorization for government officials to go on creating ad hoc exceptions to the law under cover of law.

Similar measures apply domestically, from the warrantless surveillance of American citizens, to the ever-shifting regulations governing airport security. As if to emphasize the irrelevance of concepts like national citizenship and international borders, the Obama administration has announced that "special permission" may be granted to the U.S. military to assassinate United States citizens living abroad, depending on hopelessly vague criteria described as "whether that American is involved in a group that is trying to attack us ... [and] whether that American is a threat to other Americans." [18] "Special permission" means: permission to unilaterally and without constraint create an exception to the law, specifically, the U.S. Constitution, in matters of life and death. This unprecedented announcement by the "liberal" Obama administration raised barely an eyebrow in the national media. The power of exceptionality is such that the President may impose the death sentence on American citizens without any charges or trial -- simply by declaring that citizen a "Terrorist."

The point of housing detainees in Cuba, of outsourcing torture to third world countries and/or private security firms, nullifying the right of habeas corpus for terror suspects, even the use of private contractors and pilotless drones in lawless frontiers -- one primary goal is to ensure that the legal status of the state's counter-terrorism practices will remain ambiguous and uncertain, and at the same time to institutionalize this ambiguous legality as a permanent feature of America's global governance. The Israeli model of legalism in the occupied territories allows subject populations to be regulated by the suspension of law under in the name of legality, according to criteria so inscrutable that the rule becomes indistinguishable from the exception. The exercise of power by means of exceptionality amounts in practice to a substitution of violence, either inflicted or withheld, for the rule of law.

If " American Exceptionalism" means the right to exempt oneself from the standards of rationality that are applied to others, then its real meaning is to institutionalize the state of exception as the primary means by which America's global power is exercised and enforced under the banner of the "War on Terror".

The 20th century ended with the apparent triumph of economic liberalism under the guise of globalization, implying an erasure of external borders that were shown to be irrelevant to the reach of digitally-enhanced commerce. But this triumph did not produce "the end of history" as some had proclaimed. Instead of peace we have perpetual war, and at the dawn of the 21st century, as external borders are reduced to virtual status, we see the erection of internal borders -- barriers, check points, fences, walls, detention camps, gated communities, and so on -- all designed to shrink the public space, managing, regulating, monitoring and segregating marginalized populations by means of an increasingly arbitrary and ad hoc regime of legalism administered in the name of security.

Postscript: Terrorism and Morality

One very good reason why traditional moral reasoning cannot be applied to Terrorism is that terrorism is perfectly consistent with accepted Judeo-Christian morality and practice. [19] After all, the United States and Israel routinely slaughter large numbers of innocent civilians on nearly a daily basis. This typically occurs when the military drops bombs or fires missiles into populated areas of Palestine, Pakistan, Afghanistan or Yemen in order to "take out" terrorist targets; the civilian casualties are called "collateral damage" and are usually followed by an official expression of "regret".

Like the Western militaries, the terrorist insurgents kill civilians, the only difference (apart from the technology used) being that the latter "deliberately target" civilians, whereas the former don't. However, there is no dispute that when a populated area is bombed, the military commanders know, with absolute certainty, that multiple civilians will be killed, and the fact that commanders sometimes attempt to minimize collateral damage does nothing to change this fact. In a New York Times Op-Ed titled "Death From Above, Outrage Down Below" last May, Kilcullen, a former advisor to General David Patraeus, explained that the United States' remote-controlled drones deliver what he calls "a hit rate of two percent on 98 percent collateral" -- meaning that two militants are killed for every 98 civilians slaughtered. According to traditional Judeo-Christian moral and philosophical principles, which are reflected in the civil and criminal law of all modern Western societies, one is morally responsible for the known and foreseeable consequences of one's action, and these consequences are considered to be part of the one's deliberate act.

If someone insists that however awful, our bombs and cruise missiles still don't deliberately target civilians, and this nuance opens the moral chasm separating our morality from theirs, the answer is that when it comes to slaughtering non-combatants, "deliberately targeting" has no moral significance -- according to our own moral traditions. Regardless of whether civilians are "deliberately targeted", they are surely slaughtered deliberately -- knowingly, with certainty, indifferently, callously, conveniently and yes, regretfully, and with regular frequency. Nobody seems particularly outraged by that fact, certainly not outraged enough to stop doing it. In other words, slaughtering civilians to achieve military goals is perfectly acceptable to Western moral sensibilities.

In light of these universally known facts, it ought to be emphasized that the idea of "deliberately targeting" non-combatants is much too vague to carry the moral burden it must bear in order that Terrorism might shock our collective conscious, if we were capable of basic honesty with regard to our own standards; after all, it's not as if terrorists slaughter civilians for its own sake; rather, they attack "soft targets" in order to achieve military objectives, exactly as Western military forces do when they cause collateral damage. So what's the problem with Terrorism?

If our own accepted practices do not provide a moral basis on which to object to terrorist tactics, then the moral distinction between them and us must be sought not in a comparison of methods, but in the realm of ends. Here, the best that can be said is that the United States and Israel clearly do not require much of a reason to engage in the mass killing of women and children. The invasion of Iraq was based on what can charitably be described as "misinformation", and nobody seems to have any clear idea why we are firing Hellfire missiles at wedding parties in Afghanistan and Pakistan. Israel's most recent invasions of Lebanon and Gaza appear to have been motivated by domestic political concerns, and in retrospect, seem to have been quite pointless even from that cynical perspective.

The point is not that Terrorism is morally justified, but that, considered as a general matter from the Western perspective, Terrorism doesn't seem especially objectionable either. Perhaps the real reason why Terrorism cannot be analyzed rationally is that an honest analysis would tell us more about ourselves than we wish to know.


[1] Ze'ev B. Begin, A Zionist Stand (London: Frank Cass, 1993), quoted in Avi Schlaim, Israel and Palestine (New York: Verso, 2009), 249.

[2] (accessed on 22 November 2009).

[3] Mike Davis, Planet of Slums (New York: Verso, 2006), 2. Davis notes that cities will account for virtually all future world population growth, and ninety-five percent of this growth will occur in urban areas of developing countries, whose populations will double to nearly 4 billion over the next generation.

[4] It's apparently getting more difficult for politicians to talk about "winning" the war on terror. President Obama was roundly criticized for not using the words "victory" and "win" in his 2009 speech at West Point announcing the escalation in Afghanistan. Neoconservative pundit Max Boot wrote: "'Win is a word that Obama avoided ... [Obama] spoke of wanting to 'end this war successfully' but said nothing of winning the war." Andrew Bacevich, "No Exit," The American Conservative, (accessed on 4 December 2009).

[5] In the early days of 2010, Dick Cheney complained, "We are at war ... and when President Obama pretends we aren't, it makes us less safe." Obama's Attorney General rebutted this charge, insisting, "I don't think there's any question but that we are at war" with Terrorists; Chief counterterrorism advisor John Brenna said in August, "we are at war with Al Qaeda," and in May the President announced, "We are indeed at war with Al Qaeda and its affiliates." Jacob Sullum, "The Meaning of Ists," Reason, (accessed 4 December 2009). Never before in human history has a country expressed more anxiety over whether or not it is really at war.

[6] Gary Stoller, "Homeland Security Generates Multibillion Dollar Business," USA Today (Sept. 10, 2006), (accessed 28 December 2009).

[7] Ludwig Wittgenstein's Philosophical Investigations explores the ways in which the temptation to metaphysics (which is built into our ordinary language, as language's tendency to repudiate its own foundation) can undermine a speaker's responsibility for meaning what is said. Stanley Cavell has devoted much of his intellectual life to analyzing this strain of Wittgenstein's late work.

[8] Quoted in Jonathan Freedland, "For Israelis -- and Jews -- fear is now international," The Guardian (29 November 2002).

[9] Floyd and Mary Beth Brown, "Obama's Rose-Colored Glasses," FrontPage (Nov. 16, 2009), (accessed 17 November 2009).

[10] Richard Landes, "Moral Equivalence," The Augean Stables, (accessed 17 November 2009).

[11] Richard Lowry and Ramesh Ponnuru, "An Exceptional Debate: The Obama Administration's Assault on American Identity," National Review Online (March 8, 2010), (accessed 2 March 2010).

[12] Melanie Phillips, "The Moral Inversion of Richard Goldstone," The Spectator (Sept. 16, 2009), (accessed 17 November 2009).

[13] Adi Opher, "A Time of Occupation," in The Other Israel eds. Carey and Shainin (New York: W.W. Norton, 2002), 51 -- 66.

[14] In his book State of Exception (Chicago: U. of Chicago Press, 2005), Giorgio Agamben examines how exception has become a model for the exercise of state power by Western democracies. The word "legalism" is intended to bring to mind the concept of "moralism" (as distinguished from morality), indicating the practice of judging the actions of others based on criteria which do not apply to the person judging.

[15] Reisner is quoted in Michael Kearney, Lawfare, Legitimacy, and Resistance: The Weak and the Law (ms), which in turn is quoted in Jeff Halper, "The Second Battle of Gaza: Israel's Undermining of International Law," (accessed 30 April 2010).

[16] Asa Kasher, "A Moral Evaluation of the Gaza War: Operation Cast Lead," Jerusalem Center for Public Affairs Brief (2010,) 18, quoted in Jeff Halper, op. cit.

[17] In their essay, "The Order of Violence", Ariella Azoulay and Adi Ophir discuss how the arbitrariness of Israel's application of the law in the occupied territories destabilizes the civil status of occupied people, rendering them unable to internalize the law and so discipline themselves. The result is an escalation of violence. Ophir, Givoni and Hanafi, The Power of Inclusive Exclusion (New York: Zone Books, 2009) 115-116.

[18] Eli Lake, "'Permission' Needed to Kill U.S. Terrorists," Washington Times (Feb. 4, 2010), (accessed 4 February 2010).

[19] The following paragraphs are based on Michael Neumann's highly original moral analysis of terrorism in The Case Against Israel (Oakland: AK Press, 2005).


Carl E. Kandutsch is a telecommunications attorney practicing in Dallas, Texas. Dr. Kandutsch holds a Ph.D. in Comparative Literature from Yale University.

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