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authorSilvio Rhatto <rhatto@riseup.net>2019-09-17 22:53:02 -0300
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@@ -323,7 +323,6 @@ By Bernard E. Harcourt.
[...]
- warfare theory. 3
A founding principle of revolutionary insurgency—what Paret referred to as
“the principal lesson” that Mao taught—was that “an inferior force could
outpoint a modern army so long as it succeeded in gaining at least the tacit
@@ -1575,3 +1574,177 @@ The unprecedented, self-fulfilling profecy:
We are headed not, as Kant would have it, toward perpetual peace, but
instead, sounding the refrain of Nietzsche’s eternal return, toward an endless
state of counterinsurgency warfare.
+
+### Not exactly a state of exception, but of legality
+
+ MANY COMMENTATORS ARGUE THAT WE NOW LIVE, IN THE United States and in the
+ West more broadly, in a “state of exception” characterized by suspended legality.
+ In this view, our political leaders have placed a temporary hold on the rule of
+ law, with the tacit understanding that they will resume their adherence to liberal
+ legal values when the political situation stabilizes. Some commentators go
+ further, arguing that we have now entered a “permanent state of exception.”
+
+ This view, however, misperceives one particular tactic of counterinsurgency
+ —namely, the state of emergency—for the broader rationality of our new
+ political regime. It fails to capture the larger ambition of our new mode of
+ governing. The fact is, our government does everything possible to legalize its
+ counterinsurgency measures and to place them solidly within the rule of law—
+ through endless consultations with government lawyers, hypertechnical legal
+ arguments, and lengthy legal memos. The idea is not to put law on hold, not
+ even temporarily. It is not to create an exception, literally or figuratively. On the
+ contrary, the central animating idea is to turn the counterinsurgency model into a
+ fully legal strategy. So, the governing paradigm is not one of exceptionality, but
+ of counterinsurgency and legality.
+
+ [...]
+
+ The logic today is based on a model of
+ counterinsurgency warfare with, at its heart, the resolution of that central tension
+ between brutality and legality. The counterrevolutionary model has resolved the
+ inherited tension and legalized the brutality.
+
+ [...]
+
+ Agamben’s idea of a permanent state of exception pushes this
+ further, but simultaneously undermines the defining element of the exception,
+ since it becomes the rule. For the most part, though, the state of exception is
+ presented as aberrational but temporary.
+
+ [...]
+
+ The problem with the state-of-exception view is that it mistakes tactics for
+ the overarching logic of our new paradigm of governing and, in the process, fails
+ to see the broader framework of The Counterrevolution. The state-of-exception
+ framework rests on an illusory dichotomy between rule and exception, a myth
+ that idealizes and reifies the rule of law. The point is, the use of torture at CIA
+ black sites and the bulk collection of American telephony metadata were not
+ exceptions to the rule of law, but were rendered fully legalized and regulated
+ practices—firmly embedded in a web of legal memos, preauthorized formalities,
+ and judicial or quasi-judicial oversight. In this sense, hardly anything that
+ occurred was outside or exceptional to the law, or could not be brought back in.
+
+ The Counterrevolution, unlike the state of exception, does not function on a
+ binary logic of rule and exception, but on a fully coherent systematic logic of
+ counterinsurgency that is pervasive, expansive, and permanent. It does not have
+ limits or boundaries. It does not exist in a space outside the rule of law. It is all
+ encompassing, systematic, and legalized.
+
+ Of course, the rhetoric of “exception” is extremely useful to The
+ Counterrevolution. “States of emergency” are often deployed to seize control
+ over a crisis and to accelerate the three prongs of counterinsurgency.
+
+ [...]
+
+ The ultimate exercise of power, Foucault argued, is precisely to transform
+ ambiguities about illegalisms into conduct that is “illegal.”
+
+ [...]
+
+ During the ancien régime, Foucault argues, the popular and the privileged
+ classes worked together to evade royal regulations, fees, and impositions.
+ Illegalisms were widespread throughout the eighteenth century and well
+ distributed across the different strata of society
+
+ [...]
+
+ As wealth became increasingly mobile after the French Revolution, new
+ forms of wealth accumulation—of moveable goods, stocks, and supplies as
+ opposed to landed wealth—exposed massive amounts of chattel property to the
+ workers who came in direct contact with this new commercial wealth. The
+ accumulation of wealth began to make popular illegalisms less useful—even
+ dangerous—to the interests of the privileged. The commercial class seized the
+ mechanisms of criminal justice to put an end to these popular illegalisms
+ [...] The privileged seized the administrative and
+ police apparatus of the late eighteenth century to crack down on popular
+ illegalisms.
+
+ [...]
+
+ They effectively turned popular illegalisms into
+ illegalities, and, in the process, created the notion of the criminal as social
+ enemy—Foucault even talks here of creating an “internal enemy.”
+
+ [...]
+
+ In The Counterrevolution—by contrast to the bourgeois revolutions of the
+ early nineteenth century—the process is turned on its head. Illegalisms and
+ illegalities are inverted. Rather than the privileged turning popular illegalisms
+ into illegalities, the guardians are turning their own illegalisms into legalities.
+ [...] The strategy here is to paper one’s way into the legal realm through elaborate
+ memorandums and advice letters that justify the use of enhanced interrogation or the
+ assassination of American citizens abroad.
+
+ [...]
+
+ On the one hand, there is a strict division of responsibilities: the intelligence
+ agencies and the military determine all the facts outside the scope of the legal
+ memorandum. [...] Everything is compartmentalized.
+
+ [...]
+
+ On the other hand, the memo authorizes: it allows the political authority to
+ function within the bounds of the law. It sanitizes the political decision. It cleans
+ the hands of the military and political leaders. It produces legalities.
+
+A circular, feedback loop:
+
+ None of this violates the rule of law or transgresses the boundaries of legal
+ liberalism. Instead, the change was rendered “legal.” If this feels circular, it is
+ because it is: there is a constant feedback effect in play here. The
+ counterinsurgency practices were rendered legal, and simultaneously justice was
+ made to conform to the counterinsurgency paradigm. The result of the feedback
+ loop was constantly new and evolving meanings of due process. And however
+ rogue they may feel, they had gone through the correct procedural steps of due
+ process to render them fully lawful and fully compliant with the rule of law.
+
+ [...]
+
+ “Abnormal,” in 1975, Foucault explored how the clash between the juridical
+ power to punish and the psychiatric thirst for knowledge produced new medical
+ diagnoses that then did work.
+
+ [...]
+
+ In his 1978 lecture on the invention of the notion of dangerousness in French
+ psychiatry, Foucault showed how the idea of future dangerousness emerged from
+ the gaps and tensions in nineteenth-century law. 37
+
+ [...]
+
+ There are surely gaps here too in The Counterrevolution—tensions between
+ rule-boundedness on the one hand and a violent warfare model on the other.
+ Those tensions give momentum to the pendulum swings of brutality that are then
+ resolved by bureaucratic legal memos.
+
+### System analysis and Operations Research
+
+ The RAND Corporation played a seminal role in the development of
+ counterinsurgency practices in the United States and championed for decades—
+ and still does—a systems-analytic approach that has come to dominate military
+ strategy. Under its influence, The Counterrevolution has evolved into a logical
+ and coherent system that regulates and adjusts itself, a fully reasoned and
+ comprehensive approach.
+
+ [...]
+
+ Systems analysis was often confused with OR, but it was distinct in several
+ regards. OR tended to have more elaborate mathematical models and solved
+ lower-level problems; in systems analysis, by contrast, the pure mathematical
+ computation was generally applied only to subparts of the overall problem.
+ Moreover, SA took on larger strategic questions that implicated choices between
+ major policy options. In this sense, SA was, from its inception, in the words of
+ one study, “less quantitative in method and more oriented toward the analysis of
+ broad strategic and policy questions, […] particularly […] seeking to clarify
+ choice under conditions of great uncertainty.” 5
+
+ [...]
+
+ As this definition made clear, there were two meanings of the term system in
+ systems analysis: first, there was the idea that the world is made up of systems,
+ with internal objectives, that need to be analyzed separately from each other in
+ order to maximize their efficiency. Along this first meaning, the analysis would
+ focus on a particular figurative or metaphorical system—such as a weapons
+ system, a social system, or, in the case of early counterinsurgency, a colonial
+ system. Second, there was the notion of systematicity that involved a particular
+ type of method—one that began by collecting a set of promising alternatives,
+ constructing a model, and using a defined criterion.