Meeting the Enemy

American Exceptionalism and International Law

Natsu Taylor Saito

• Publisher: NYU Press
• Year: 2010
• ISBN:
  9780814741252
• Topic: Diritto
• Subtopic: Diritto internazionale

Since its founding, the United States has defined itself as the supreme protector of freedom throughout the world, pointing to its Constitution as the model of law to ensure democracy at home and to protect human rights internationally. Although the United States has consistently emphasized the importance of the international legal system, it has simultaneously distanced itself from many established principles of international law and the institutions that implement them. In fact, the American government has attempted to unilaterally reshape certain doctrines of international law while disregarding others, such as provisions of the Geneva Conventions and the prohibition on torture.

America’s selective self-exemption, Natsu Taylor Saito argues, undermines not only specific legal institutions and norms, but leads to a decreased effectiveness of the global rule of law. Meeting the Enemy is a pointed look at why the United States’ frequent—if selective—disregard of international law and institutions is met with such high levels of approval, or at least complacency, by the American public.

1
Saving Civilization
The War on Terror

The transformation of “the other” has been the continuous goal of the “civilizing mission,” but this task has acquired an unprecedented urgency, an imperative character, precisely because it is now so powerfully linked to the idea of self-defence and survival, not only of the United States but of civilization itself.

—Antony Anghie, Imperialism, Sovereignty and
the Making of International Law

Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. . . . This is not, however, just America’s fight. And what is at stake is not just America’s freedom. This is the world’s fight. This is civilization’s fight.

—George W. Bush, Presidential Address to Congress,
September 23, 2001

On September 11, 2001, nineteen hijackers flew three airplanes into the Pentagon and World Trade Center towers, resulting in approximately twenty-nine hundred deaths.¹ These attacks could have been treated as criminal acts and prosecuted within the existing framework of law, domestic or international. As legal scholar Anthony Cassese has explained, international terrorism has been recognized as a crime in times of peace; in times of armed conflict it is a war crime; and it may also be a crime against humanity, whether committed during times of peace or war.² However, the attacks of September 11, 2001, have been used by the United States, wielding its super-power status, to formally usher in a new era of international law and political relations defined in terms of a global “war on terror.”

While many of the specific actions taken in this “war” have been cast as emergency measures necessary to protect against imminent threats to national or international security, it has become increasingly clear that the government’s intent has been to ensure the consolidation of a framework of international law in which American exceptionalism is structurally embedded. As George W. Bush announced in February 2002, “Our Nation recognizes that this new paradigm–ushered in not by us but by terrorists—requires new thinking in the law of war.”³ In this process, not only international but U.S. norms are being reshaped, prompting one scholar to observe that the war on terror “is also a catalyst for a process through which the identity of the United States is being constituted or shaped, although not always self-reflectively.”⁴This process will continue to have lasting effects, regardless of the particular polices of future administrations, unless the underlying dynamics and rationales for these changes are significantly altered.

The emerging paradigm, within both domestic and international law, has many unique features. Nonetheless, in critical ways, it is best understood as the latest extension of a number of historical trends. In some respects, this reconfiguration can be characterized as the military capstone of a process of political and economic consolidation, often shorthanded as “globalization,” which has been occurring for several decades, a subject addressed in more detail in later chapters. But the “new paradigm” has much deeper roots and, therefore, to fully appreciate and appropriately respond to the implications of this emerging world order, we must consider not just its recent history but the more fundamental constructs of international law and the visions of “civilization” and human progress upon which it relies.

In light of the many criticisms of the crudity of the “us versus them” arguments put forth in this so-called war on terror, the interesting question becomes why these arguments have had so much traction, at least in American public opinion. The answer lies, I believe, in the reality that, despite the discomfort many Americans feel with such a stark articulation, the underlying concepts do, in fact, resonate with deeply held beliefs about “human nature,” “progress,” and “civilization” and, more specifically, about American identity within that paradigm. I begin, therefore, with these arguments—not because they provide a convenient “straw man,” but because I believe they reflect core beliefs which undergird arguments for the maintenance of the status quo, even when articulated in a more sophisticated manner. This chapter begins by outlining some basic presuppositions of the current war on terror, focusing particularly on what is meant by the claim that it is a war to preserve and protect civilization. The following sections consider the presumptions underlying this notion of civilization and look briefly at how the assumption of a “civilizing mission” informed the early development of a universalizing yet distinctly Eurocentric international law from which contemporary legal norms and institutions have evolved.⁵

Six Precepts of the War on Terror

Within a few days of the attacks on the Pentagon and the World Trade Center, George W. Bush, forty-third president of the United States, announced that “our responsibility to history is … to answer these attacks and rid the world of evil.”⁶ What materialized was a shape-shifting “war on terror.” As both a military and an ideological struggle, it has been a conflict with neither geographical boundaries nor a clear definition of what would constitute victory, and therefore a “global enterprise of uncertain duration.”⁷ Named enemies have taken various forms—Osama bin Laden and the al Qaida network, the Taliban government of Afghanistan, the state of Iraq and its president, Saddam Hussein, an “axis of evil” consisting of North Korea and Iran as well as Iraq, “radical Islam,” the hundreds of men and boys of several dozen nationalities indefinitely detained at the U.S. Naval Base at Guantánamo Bay, Cuba, and select U.S. citizens declared without proffer of evidence to be “enemy combatants.”⁸ Perhaps because its scope is so broad and its campaigns so numerous, this war on terror has been analyzed in many different ways. In order to understand its relationship to American exceptionalism, however, it is useful to focus on six of its basic precepts.⁹

The War on Terror Is a Confrontation with Evil

The first precept is that there is an enemy, and that enemy is “evil,” the term being used in this context as both a noun and an adjective. Invoking, at least obliquely, President Ronald Reagan’s Cold War rhetoric describing the Soviet bloc as the “evil empire,”¹⁰ George W. Bush announced in his June 2002 West Point commencement address, “We are in a conflict between good and evil, and America will call evil by its name.”¹¹

By establishing this as their most basic premise, the architects of this project have laid the groundwork for avoiding any discussion of motivations, legitimate or not, that might prompt attacks against the United States, as well as any debates concerning the morality or legality of actions taken in the course of the “war.” As President Bush told a gathering of Federal Bureau of Investigation employees, “The people who did this act on America, and who may be planning further acts, are evil people. They don’t represent an ideology, they don’t represent a legitimate political group of people. They’re flat evil. That’s all they can think about, is evil.”¹² Shortly thereafter, he emphasized the imperative of responding rather than analyzing: “We cannot fully understand the designs and power of evil. It is enough to know that evil, like goodness, exists.”¹³

Terrorists and Those Who Harbor Them Are the Enemy

Well before the inauguration of the war on terror, President Bush informed the American people that we had enemies, even if we had difficulty identifying them: “When I was coming up, it was a dangerous world, and you knew exactly who they were. It was us versus them, and it was clear who them was. Today we are not so sure who they are, but we know they’re there.”¹⁴ The unseen enemy is, of course, often the most frightening, a psychological phenomenon frequently taken advantage of by the makers of Hollywood “westerns” and horror movies.¹⁵ After September 11, 2001, the enemy now has a name, if not a clear identity. The evil being fought is embodied in terrorism, which is defined in the NSS as “premeditated, politically motivated violence perpetrated against innocents.”¹⁶ The second precept is that terrorists are the enemy, and “we make no distinction between terrorists and those who knowingly harbor or provide aid to them.”¹⁷

This enemy is nonetheless elusive, operating, in President Bush’s terms, from “shadowy networks” which are “organized to penetrate open societies and to turn the power of modern technologies against us.”¹⁸ Individually identified terrorists, such as bin Laden, have proven remarkably difficult to locate and capture, and large-scale round-ups of “suspects,” such as the thousands of immigrants detained in the U.S. shortly after September 11 or those since detained at Guantánamo Bay, have yielded few individuals against whom credible charges of terrorism can be made. According to David Cole,

As of January 2004, the government had detained more than 5000 foreign nationals through its antiterrorism efforts. By any measure, the program has been spectacularly unsuccessful. None of these detainees has been determined to be involved with al Qaeda or the September 11 conspiracy.¹⁹

Perhaps as a result, the U.S. has also targeted states accused of harboring or supporting terrorists. In October 2001 Afghanistan was subjected to a bombing campaign, followed by an invasion that forced its Taliban rulers from power, and soon thereafter the groundwork for the invasion and occupation of Iraq began to be laid.²⁰ The message being forcefully delivered was not directed solely at the Taliban or Iraq’s Saddam Hussein, but at all states whose rulers might consider acting in defiance of the United States or its allies.

A “rogue state” has generally been recognized as one “whose identity is to some extent defined by acting outside of the standard rules of international law.”²¹ U.S. officials, however, have expanded on this definition by describing rogue states as ones that “brutalize their own people and squander their national resources for the personal gain of the rulers[; d]isplay no regard for international law, threaten their neighbors, and callously violate international treaties to which they are party[; a]re determined to acquire weapons of mass destruction… [; s]ponsor terrorism around the globe[; r]eject basic human values and hate the United States and everything for which it stands.”²²Because such states and “their terrorist clients” must be stopped “before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends,”²³ they have been viewed as legitimate targets in this Manichean conflict.

War Is the Appropriate Response to Terrorism

By September 12, 2001, barely twenty-four hours after the September 11 attacks, President George W. Bush had declared, “The deliberate and deadly attacks which were carried out yesterday against our country were more than acts of terror. They were acts of war.”²⁴ Soon thereafter James Woolsey, a director of the Central Intelligence Agency under President Bill Clinton, concurred: “It is clear now, as it was on December 7, 1941, that the United States is at war. The question is: with whom?”²⁵ In his inaugural address, President Barack Obama agreed with the premise and answered the question by saying, “Our nation is at war, against a far-reaching network of violence and hatred.”²⁶

This third precept, that war is the most appropriate response to terrorism, is an ideological choice, not an inevitable conclusion. If the long-term goal is prevention of terrorist attacks, many scholars and political analysts have pointed out that the underlying causes of terrorism must be addressed.²⁷ Despite the fact that states can and have regularly engaged in “premeditated, politically motivated violence perpetrated against innocents,” those deemed terrorists are usually individuals or groups frustrated by perceived injustices and effectively excluded from other forms of political power.²⁸ The general principle enunciated in the UN Charter that international peace and security cannot be achieved without safeguarding fundamental human rights and dignity, seems equally applicable to state and nonstate actors.

To some extent this is acknowledged by the United States’ emphasis on the idea that its war on terror is being fought to defend liberty and justice and the recognition that a “world where some live in comfort and plenty, while half of the human race lives on less than $2 a day, is neither just nor stable.”²⁹ Nonetheless, in his introduction to the National Security Strategy (NSS), Bush was careful to note that poverty is not the cause of terrorism; the problem lies in its ability to create environments hospitable to terrorists. “Poverty does not make poor people into terrorists and murderers. Yet poverty, weak institutions, and corruption can make weak states vulnerable to terrorist networks.”³⁰ Thus, although “legitimate grievances … must be addressed within a political process,” the bottom line is that “no cause justifies terror.”³¹ The U.S. focus, therefore, has not been on identifying and addressing the root causes of terrorism, whatever they may be i...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1 Saving Civilization: The War on Terror
• 2 Civilizing the Other: Colonial Origins of International Law
• 3 A City on a Hill: America as Exception
• 4 Establishing the Republic: First Principles and American Identity
• 5 A Manifest Destiny: Colonizing the Continent
• 6 American Imperial Expansion
• 7 Making the World Safe for Democracy
• 8 The New World Order and American Hegemony
• 9 Confronting American Exceptionalism
• Notes
• Works Cited
• List of Cases
• Index
• About the Author