[...]
- 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
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.
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