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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.