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ABSTRACT
This essay examines a set of memoranda, speeches, and other official discourse issued during the Global War on Terrorism that transformed the legal paradigm under which the enemy was defined and authorized new norms of conduct previously prohibited by law. It argues that these texts employ “deconstitutive rhetoric,” defined as discursive action that undermines the existing legal status of those to whom it refers and produces a disarticulate, destitute subject by denying the individual access to the civic forums in which rhetorical agency may be exercised. The essay begins with an analysis of the use of deconstitutive rhetoric in the decision to legally re-define Afghanistan as a “failed state” in order to absolve the United States of treaty obligations with that nation. It then addresses the emergence of “unlawful enemy combatant status,” a new legal category not recognized under the international laws of war. The essay concludes with a discussion the Obama administration’s detention and drone strike policies, which have continued to use deconstitutive rhetoric to undermine the legal status of those captured and killed in the Global War on Terrorism.
Notes
1. Barack Obama, “Remarks by the President on National Security” (National Archives, 21 May 2009).
2. Obama, “Remarks.”
3. See John Yoo, War by Other Means: An Insider's Account of the War on Terror, 1st ed. (New York: Atlantic Monthly Press, 2006); and John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush (New York: Kaplan, 2009).
4. Although scholarship on post-9/11 rhetorics of war has been robust, there has been little work specifically addressing the memoranda and orders that initiated “unlawful enemy combatant” and other legal changes to the subject of warfare. One notable exception is Paul Alexander, “Establishing ‘Enemy Combatant’ as Political Rhetoric: How the Bush Administration Has Framed the Conversation on Wartime Prisoners,” Culture, Society, and Praxis 5, no. 1 (2006): 22–35. His analysis, which draws on George Lakoff's notion of “framing,” is primarily concerned with the way the term “enemy combatant” shaped public perception about military detention.
5. Barbara A. Biesecker, “Rethinking the Rhetorical Situation from Within the Thematic of Différance,” Philosophy and Rhetoric 22, no. 2 (1989): 110–30.
6. Kenneth Burke, A Rhetoric of Motives (Berkeley: University of California Press, 1969).
7. Louis Althusser, “Ideology and Ideological State Apparatuses” in Lenin and Philosophy, and Other Essays (New York: Monthly Review Press, 2001).
8. Maurice Charland, “Constitutive Rhetoric: The Case of the Peuple Québécois,” Quarterly Journal of Speech 33, no. 2 (1987): 134.
9. There is a sense in which my notion of deconstitutive rhetoric parallels Wander's identification of a third persona, which represents the “summation of all that you and I are told to avoid becoming … a being whose presence, though relevant to what is said, is negated through silence” (Wander, 1984, 210). However, there are some differences. Detainees are not ignored or overlooked by the text and audiences are not simply encouraged to avoid identifying with or as terrorists. Rather, the memos produce a material change in the legal terminology to which the detainee is subjected. In this way, these memos break with the “logic of influence” (to which personae studies are indebted) and instead affect a matrix of practices and technologies that I argue below are best grasped within what Greene, Biesecker, and others have described as a “logic of articulation.”
10. Charland, “Constitutive Rhetoric,” 143.
11. Charland, “Constitutive Rhetoric,” 143.
12. Althusser, “Ideological State Apparatuses,” 162.
13. For one take on developing a rhetoric beyond the “politics of representation,” see Ronald Greene, “Another Materialist Rhetoric,” Critical Studies in Mass Communication 15, no. 1 (1998): 21–41.
14. Greene, “Another Materialist Rhetoric,” 35. See also Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (New York: Verso, 1985).
15. Lawrence Grossberg, “On Postmodernism and Articulation: An Interview with Stuart Hall,” Journal of Communication Inquiry 10 (1986): 53.
16. See, for example, Martin Henn, Under the Color of Law: The Bush Administration Subversion of U.S. Constitutional and International Law in the War on Terror (New York: Lexington Books), 22, who claims, “In the body of U.S. constitutional and international law … the President has no more authority to suspend the applicability of Geneva in reference to captured enemies of war than he has authority to suspend the laws of physics or mathematics in application to sensible or intelligible magnitudes.
17. Kevin M. DeLuca, “Articulation Theory: A Discursive Grounding for Rhetorical Studies,” Philosophy & Rhetoric 32, no. 4 (1999): 335.
18. Alberto R. Gonzales, “Memorandum to President George W. Bush,” January 25, 2002, 2.
19. My understanding of rhetorical disarticulation is informed by Daniel F. Schowalter, “Disarticulating American Indianness in the National Museum of the American Indian,” In Rhetoric, Materiality, and Politics, eds. Barbara A. Biesecker and John Louis Lucaites (New York: Peter Lang, 2009), 253–76. However, that essay is concerned with the invention of counterhegemonic discourses, whereas I address the use of disarticulation as a tactic for consolidating and amplifying state power. See also James Jaskinski, A Sourcebook on Rhetoric: Key Concepts in Contemporary Studies (London, UK: Sage Publications, 2001), 66–67, on “conceptual disarticulation.”
20. See James Berger, Disarticulate: Language, Disability, and the Narratives of Modernity (New York: New York University Press, 2014).
21. Lawrence Grossberg, We Gotta Get Out of This Place: Popular Conservatism and Postmodern Culture (New York: Routledge, 1992), 118.
22. Grossberg, We Gotta Get Out.
23. I do agree with Grossberg's claim, however, that such attempts to completely suppress speech must ultimately fail and that even the most severely restricted subjects can often nonetheless reclaim some ground for agential action and “entitlements to speech.” See, for example, Michael P. Vicaro “Hunger for Voice: Transformative Argumentation in the 2005 Guantánamo Bay Hunger Strike,” Argumentation and Advocacy 51, no. 3 (2015): 171–83.
24. Geneva Convention Relative to the Treatment of Prisoners of War, article 17.
25. Jay Bybee, “Memorandum for Alberto R. Gonzales Counsel to the President, and William J. Haynes II General Counsel for the Department of Defense, Re: Application of Treaties and Laws to Al Qaeda and Taliban Detainees”, January 22, 2002: 9.
26. Bybee, “Memorandum,” 9.
27. David D. Caron, “If Afghanistan Has Failed, Then Afghanistan Is Dead: ‘Failed States’ and the Inappropriate Substitution of Legal Conclusion for Political Description,” in The Torture Debate in America, ed. Karen J. Greenberg (Cambridge, UK: Cambridge University Press, 2005), 218. See also Larry P. Goodson, Afghanistan's Endless War: State Failure, Regional Politics, and the Rise of the Taliban (Seattle: University of Washington Press, 2001).
28. Geneva Convention Relative to the Treatment of Prisoners of War, Article 4A (1).
29. Geneva Convention Relative to the Treatment of Prisoners of War, Article 4A (1).
30. John Yoo and Robert J. Delahunty, “Memorandum for William J. Haynes II General Counsel, Department of Defense,” January 9, 2002, 14.
31. Bybee, “Memorandum,” 22.
32. Bybee, “Memorandum,” 22.
33. Gonzales, “Memorandum to President George W. Bush,” 1.
34. Caron, “If Afghanistan Has Failed.”
35. John Poulakos, “Rhetoric and Civic Education: From the Sophists to Isocrates,” in Isocrates and Civic Education, eds. Takis Poulakos and David J. Depew (Austin: University of Texas Press, 2004).
36. Poulakos, “Rhetoric and Civic Education.”
37. John Ashcroft, “Letter to the President”, February 1, 2002 (emphasis in original).
38. Ashcroft, “Letter to the President,” (emphasis in original).
39. Caron, “If Afghanistan Has Failed.”
40. Caron, “If Afghanistan Has Failed.”
41. George W. Bush, Executive Order: Humane Treatment of al Qaeda and Taliban Detainees, February 7, 2002.
42. Bush, Executive Order.
43. International Committee of the Red Cross, “Commentary: Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War,” 1958.
44. For an excellent analysis of the transformative power of declarations of war, see Elaine Scarry, “War and the Social Contract,” University of Pennsylvania Law Review 2 (1999): 1257–316. Although Scarry does not reference speech act theory, declarations of war (like some of the other “determinations” addressed in this essay), may be described as performative utterances that do not simply describe extradiscursive conditions but, when stated by authorized officials adhering to the necessary felicity conditions, can materially transform social reality. See J. L. Austin, How to Do Things With Words (Oxford, UK: Clarendon Press, 1962). In contrast with declarations of war, determinations about “failed state” status, “unlawful enemy combatant” status, and “enemy killed in action” status can be made without public deliberation about the felicity conditions that sustain the utterance.
45. Geneva Convention relative to the Protection of Civilian Persons in Times of War, Article 3.
46. Geneva Convention relative to the Treatment of Prisoners of War, Article 5(2).
47. In fact, the clarity of the distinction between soldier and civilian had been challenged prior to the Global War on Terrorism. The two Additional Protocols to the Geneva Conventions (1977), ratified by 165 nations, sought to extend protections to those participating in modern conflicts unanticipated by the framers of the 1949 Conventions. The United States has signed but not ratified those Protocols.
48. See Peter Berkowitz, Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, vol. 537 (Hoover Institution Press, 2005); Jennifer Elsea, Detention of American Citizens as Enemy Combatants (New York: Nova Science Publishers, 2008), Peter Jan Honigsberg, Our Nation Unhinged: The Human Consequences of the War on Terror (Berkeley: University of California Press, 2009); David Linnan, Enemy Combatants, Terrorism, and Armed Conflict Law: A Guide to the Issues (Westport, CT: Praeger Security International, 2008).
49. Honigsberg, Our Nation Unhinged, 15.
50. Honigsberg, Our Nation Unhinged, 82.
51. Honigsberg, Our Nation Unhinged, 15.
52. This, again, is in clear violation of the Geneva Convention regulation that combatant status must be determined on an individual basis and that all individuals must be treated as POWs until such a determination can be made by a competent tribunal.
53. Military Commissions Act (2006).
54. A critic employing Charland's vocabulary might contend that Bush has “constituted” enemy combatant status and would perhaps challenge my emphasis on the “deconstitution” of existing legal categories. I acknowledge a dialectical relationship between constitutive and deconstitutive rhetoric; and I acknowledge that the adoption of the term enemy combatant has required the participation of many interested parties who have found the term acceptable. However, my focus on “deconstitutive” rhetoric highlights the effects of materially transformative official discourse on those, such as suspected terrorists in the Global War on Terrorism, whose self-recognition or “buy-in” is not required.
55. For a rhetorically informed analysis of the law governing so-called “enhanced interrogation” techniques, see Michael P. Vicaro “A Liberal Use of ‘Torture’: Pain, Personhood, and Precedent in the U.S. Federal Definition of Torture,” Rhetoric & Public Affairs 14, no. 3 (2011): 401–26.
56. See, for instance, Mohamedou Ould Slahi, Guantánamo Diary, ed. Larry Siems (New York: Little, Brown, and Company, 2015).
57. Indeed, the Supreme Court has explicitly rejected the claim that the courts may play any role in the “evaluation of the accuracy of the executive branch's determination that a person is an enemy combatant” in Hamdi v. Rumsfeld, 316 F.3d 450, 474 (2003).
58. National Defense Authorization Act For Fiscal Year 2012, Pub. L. No. 112-81, 112th Cong. (31 December, 2011).
59. National Defense Authorization Act For Fiscal Year 2012, 265.
60. Glenn Greenwald, “Three myths about the detention bill,” Salon, 16 December, 2011, http://www.salon.com/2011/12/16/
61. Greg Miller, “White House approves broader Yemen drone campaign,” Washington Post, 25 April 2012, https://www.washingtonpost.com/world/national-security/white-house-approves-broader-yemen-drone-campaign/2012/04/25/gIQA82U6hT_story.html?wpisrc=nl_headlines
62. Jack Serle and Abigail Fielding-Smith, “US drone wars in Pakistan, Afghanistan, and Somalia: Monthly report, July 2015,” The Bureau of Investigative Journalism, 3 August 2015, https://www.thebureauinvestigates.com/2015/08/03/us-drone-wars-in-pakistan-afghanistan-yemen-and-somalia-monthly-report-july-2015/
63. Samuel Issacharoff and Richard Pildes, “Targeted Warfare: Individuating Enemy Responsibility,” New York University Law Review (2013): 1521–99.
64. Issacharoff and Pildes, “Targeted Warfare,” 1573.
65. See Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd ed. (New York: Basic Books, 1997).
66. Peter Bergen and Jennifer Rowland, “Civilian Casualties Plummet in Drone Strikes,” CNN, 14 July, 2012, http://www.cnn.com/2012/07/13/opinion/bergen-civilian-casualties/; and Scott Shane, “The Moral Case for Drones,” New York Times,14 July, 2012, http://www.nytimes.com/2012/07/15/sunday-review/the-moral-case-for-drones.html?_r=0
67. See Ryan Devereux, “Manhunting in the Hindu Kush,” The Intercept, 15 October 2015, https://theintercept.com/drone-papers/manhunting-in-the-hindu-kush/
68. And, EKIA status ensures that official reports will be populated with sufficient numbers of enemy casualties to justify the continued use of U.S. military force in places far removed from formal warzones.
69. Didier Fassin, Humanitarian Reason: A Moral History of the Present (Berkeley: University of California Press, 2012).
70. Shane, “The Moral Case for Drones.”
71. Ronald Greene, “Rhetorical Materialism: The Rhetorical Subject and the General Intellect,” in Rhetoric, Materiality, and Politics, eds. Barbara A. Biesecker & John Louis Lucaites (New York: Peter Lang, 2009), 44.
72. See, for example, Colin Dayan, “Due Process and Lethal Confinement,” South Atlantic Quarterly 107, no. 3 (2008): 485–507. For a rhetorically informed analysis of supermax detention as an instrument of violence, see Michael P. Vicaro, “Being Confined: Time, Space, and Intersubjectivity in Long-Term Solitary Confinement,” in Contexts of the Dark Side of Communication, eds. Eletra Gilchrist-Petty and Shawn D. Long (New York: Peter Lang, 2016), 175–85.