We Are All Torturers Now Accountability after Abu Ghraib

3 “We ARe All toRtUReRs noW” Accountability after Abu Ghraib “ W e are all torturers now.” So reads the title of an op-ed written by Mark Danner and published in the New York Times in January 2005. The gist of Danner’s argument, which followed revelations of the abuse meted out by U.S. security personnel at the Abu Ghraib prison complex, is as follows: “By using torture, the country relinquishes the very ideological advantage — the promotion of democracy, freedom and human rights — that the president has so persistently claimed is America’s most powerful weapon in defeating Islamic extremism. . . . By using torture we Americans transform ourselves into the very caricature our enemies have sought to make of us.” But how exactly, we might wonder, are “all” Americans implicated, and what sort of accountability is at stake when persons participating in the United States military campaign in Iraq commit atrocities, quoting Danner, “in their name”? 1 Danner’s response to these questions, implicit in the op-ed’s title, presupposes a specific conception of democracy and, more particularly, of the constitution of popular sovereignty in a democratic political order. If, however, this representation is anachronistic, as I believe it is, then 67 derivative claims regarding the locus of collective accountability for torture will prove flawed as well. Accordingly, my aim in this essay is, first, is to indicate why an appreciation of certain features of the contemporary U.S. security state should cause us to pause before endorsing the allegation that “we are all torturers now” and, second, more speculatively than conclusively, to suggest how we might begin to rearticulate the question of political accountability after Abu Ghraib. 68 liberal legalism and Accountability In this essay, I am not concerned with recent discussions about how the term “torture” is to be defined. Nor am I concerned with recent arguments condemning this practice, no matter how defined. Nor, for that matter, am I concerned with the specific events that transpired at Abu Ghraib, no matter how characterized and no matter how abhorrent. Instead, I am interested in judgments of accountability regarding what happened there, emanating from the political right as well as the left, within the United States. Such judgments have ranged from the particular to the general, depending at least in part on whether the social contractarian premises presupposed by conventional liberal legal discourse are or are not expressly called into play. Most narrowly, one finds members of the current administration. President George W. Bush, for example, effectively settled the question of accountability by characterizing what took place at Abu Ghraib as the “disgraceful conduct by a few American troops who dishonored our country and disregarded our values.” 2 This characterization was echoed by the official investigative reports issued in the wake of Abu Ghraib, all of which explained these events in terms of the pathological and/or immoral conduct of a handful of rogue soldiers. To cite but one of many possible examples, according to the “psychological assessment” appended to the report commissioned by Lieutenant General Ricardo Sanchez, the incidents at the Baghdad prison complex were the work of a small number of “immoral men and women” who engaged in “sadistic and psychopathic behavior.” 3 These characterizations, as well as the judgments of accountability that derive from them, are unsurprising but also quite inadequate. They are unsurprising insofar as they presuppose the methodological individual- ism that informs most liberal legalism, which, as a rule, defines punishable wrongdoing as the deliberately willed acts of identifiable perpetrators. This is what one would anticipate in a political order in which holistic affirmations of group liability are often countered by the claim that a collectivity is nothing more than an aggregate of the individuals composing it, and that therefore culpability can be assigned only to those persons immediately and proximately implicated in a specific misdeed. (To see the point, think of neoconservative critiques of arguments avowing collective white guilt for structural racism as well as of affirmative action programs aimed at alleviating such racism.) Leaving aside the question of whether “psychopaths” can be deemed fully competent and so liable for their conduct, these characterizations effectively dictate the appropriate response to what those at Abu Ghraib are alleged to have done. Construed as criminal suspects, the accused are to be charged, tried, and, if found guilty, punished for violations of specific provisions of the Uniform Code of Military Justice. The inadequacies of this way of resolving the issue of accountability are multiple. For present purposes, it suffices to note that this construction makes it far too easy to assign the role of patsy to Charles Graner, Lynndie England, and their ilk and that in turn diverts attention from the larger chain of command in which they were severable links.4 The disingenuousness of this resolution, I suspect, at least partly explains why in 2005 the American Civil Liberties Union and Human Rights First filed four suits on behalf of eight and, later, nine plaintiffs who allegedly were tortured and subjected to cruel, inhuman, and degrading forms of treatment by U.S. military personnel at Abu Ghraib and elsewhere in Iraq as well as in Afghanistan. These suits, which were consolidated in 2006, named as defendants Janis Karpinski, commander of the U.S. Army unit responsible for detention facilities in Iraq from June 2003 to May 2004; Thomas Pappas, commander of the army unit responsible for intelligence-gathering operations, including those conducted at Abu Ghraib; Ricardo Sanchez, commander of the U.S.-led military coalition from June 2003 to July 2004; and, finally, Donald Rumsfeld, then the highest-ranking civilian in the U.S. Department of Defense. In Ali et al. v. Rumsfeld, the American Civil Liberties Union and Human Rights First contended that the defendants had violated the Fifth and Eighth Amendments to the U.S. Constitution, the Geneva Conventions, “ W e Ar e A l l To rt ur e rs N ow ” 69 70 and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment insofar as they “1) formulated or implemented policies and practices that caused the torture and other cruel, inhuman or degrading treatment of plaintiffs; and 2) had effective command and control of U.S. military personnel in Iraq and/or Afghanistan and knew and had reason to know of torture and abuse by their subordinates and failed to promptly and effectively prohibit, prevent, and punish unlawful conduct.” 5 As the legal foundation for these charges, the complaint invoked the doctrine of command responsibility, which specifies the conditions under which officers and/or officials may be deemed liable for the acts of subordinates. Seeking to expand the scope of accountability beyond those proximately and personally responsible for the harms inflicted at Abu Ghraib, this suit posed a host of potential conundrums for the law, including but not limited to the question of the appropriate remedy should the defendants be found legally liable.6 These questions were never given a full hearing because, in March 2007, a federal judge dismissed the case, chiefly on the ground that government officers, when acting within the scope of their official duties, are either largely or entirely immune from lawsuits.7 This outcome, which surprised only the naive, is not of primary concern to me in this context. What is of concern is the way in which the doctrine of command responsibility opens up the possibility of moving beyond the confines of a strict construction of legal liability, that is, one that limits culpability to Graner, England, and others foolish enough to pose for the camera while inside the walls of Abu Ghraib. Once the possibility of such expansion is admitted, especially in a political order predicated on the subordination of military to civilian authority, there is no reason in principle why application of the doctrine of command responsibility should stop with Donald Rumsfeld. Consider, in this regard, a 2005 article written by former congresswoman Elizabeth Holtzman and published in the Nation, in which Holtzman calls for creation of a congressional commission to see who, including those at the highest level of our government, directed the inhuman treatment or torture of detainees. . . . If the inquiry finds that the President or Secretary of Defense (or other high-level government officials) directed or knowingly condoned the inhuman treatment or torture of U.S. detainees, then a special prosecutor should be appointed, with guarantees of full independence, to determine whether there is any criminal liability under the War Crimes Act (and the U.S. anti-torture statute) or any other applicable criminal statutes. However, recognizing that neither Congress nor the U.S. attorney general was likely to take such steps, Holtzman directed her final appeal to the American public at large: Those in the public who care deeply about the rule of law and governmental accountability must keep the issue alive. Failure to investigate wrongdoing in high places and tolerating misconduct or criminality can have only the most corroding impact on our democracy and the rule of law that sustains us.8 The editors of the Nation indicated in a July 2004 editorial just how this issue might best be “kept alive.” Following a denunciation of the so-called torture memos, that is, the legal counsel offered to the Bush administration regarding the tactics that could be employed in interrogating suspected terrorists, the editors declared: “It seems that the Administration’s attitude is that all the Constitution’s clauses but one — the Commander in Chief clause — are irrelevant. That view is perilously close to totalitarianism, and calls for more than a special prosecutor. Voters must remove those responsible for this assault on democracy.” 9 On this account, acts of torture, like unfettered exercises of executive prerogative, are incompatible with the principles of democracy, presumably because neither respects the rule of law. In a democracy, which rests on the principle of popular sovereignty, citizens must hold their leaders accountable for such violations of the rule of law by removing them from office, whether via conventional electoral methods or, more dramatically, via impeachment proceedings. From this place, only a few short steps are necessary in order to arrive at the conclusion that all Americans are in some nontrivial sense liable and so accountable for what happened at Abu Ghraib. As the Nation’s 2004 editorial intimates, whether narrowly or more broadly construed, liberal legalism is situated on the terrain defined by social contract theory and its commitment to popular sovereignty. That terrain, which is presupposed by the headline of Danner’s 2005 op-ed, includes the following “ W e Ar e A l l To rt ur e rs N ow ” 71 72 familiar premises: The unity of the people in a liberal political order is imagined to arise from a quasi-juridical contract. Via that contract, persons bind themselves to one another and, in so doing, constitute themselves as a popular sovereign. Government, whose paradigmatic mode of action is the law and whose privileged representative is the legislature, is created in order to do the bidding of this sovereign; its authority, as specified in and limited by that foundational contract, is a function of the sovereign’s authorization. As such, all participants in this contract are final authors of the deeds of those who act in their name, whether elected representatives, executive officials, or simply soldiers. “Our” implication in their deeds, in other words, is in the mode of indirect but ultimately responsible authorization. Consequently, it falls to all of us, as express or tacit signatories to the social contract, to acknowledge our collective wrongdoing when misdeeds are committed in our name and so to seek legal or political redress, either by bringing the offenders into a court of law and/or by removing them from their positions. In at least one respect, this way of resolving the question of accountability may prove as problematic as that advanced by the president. Although not a logically necessary consequence, by ascribing responsibility for such conduct to its ultimate authors, namely, to “all” Americans, the thrust of Danner’s op-ed may distract attention from the specific culpability of those in the chain of military command as well as the civilian officers to whom its officers ultimately report. It is something akin to this worry that prompted Hannah Arendt, in a brief essay written in the midst of the American civil rights movement, to draw a sharp distinction between affirmations of responsibility and judgments of guilt. Specifically, Arendt rejected the contention that collective accountability for the evils of racism on the part of white liberals should be framed in the language of guilt. While never expressly endorsing the methodological individualism that informs liberal legalism, Arendt nonetheless insisted that “there is no such thing as being or feeling guilty for things that happened without oneself actively participating in them.” I do not know how many precedents there are in history for such misplaced feelings, but I do know that in postwar Germany, where similar problems arose with respect to what had been done by the Hitler regime to Jews, the cry “We are all guilty” that at first hearing sounded so very noble and tempting has actually only served to exculpate to a considerable degree those who actually were guilty. Where all are guilty, nobody is. Guilt, unlike responsibility, always singles out; it is strictly personal. It refers to an act, not to intentions or potentialities. It is only in a metaphorical sense that we can say we feel guilty for the sins of our fathers or our people or mankind, in short, for deeds we have not done, although the course of events may well make us pay for them.10 73 Guilt, Arendt argues, can serve as either a moral or a legal category; in both instances, though, its referent is a specific person and what that person has done. This category, Arendt would no doubt assert, is appropriate when we assign culpability and then punish persons who directly participated in the atrocities of Abu Ghraib, and it is perhaps appropriate when we seek to identify those in the chain of command who either authorized these atrocities, or, knowing of them, did little or nothing to bring them to a halt. Affirmations of collective guilt, by way of contrast, are predicated on little more than “phony sentimentality in which all real issues are obscured.” 11 While such sentimentality may elicit the cheap gratification that accompanies politically correct hand-wringing, it is a sorry substitute for the work of careful thinking about collective accountability (or “responsibility,” to use Arendt’s term) for what happened at Abu Ghraib. Prerogative Power Unbound As the preceding discussion indicates, when the question of accountability for Abu Ghraib in particular and torture more generally has been posed in recent debates within the United States, the terms of that exchange have been predictable, if not hackneyed. On the one hand, there are those who, for reasons of political expediency, seek to sever the chain of mutual political implication and so confine accountability to those most immediately involved. On the other hand, there are those who seek to reconnect the links of this chain, whether in an effort to hold accountable officials in Washington, D.C., or, sometimes, all citizens of the United States. None, however, step beyond the terrain defined by a social contractarian conception of liberal political order, and none ask about the adequacy of this characterization to the regime in which we now find ourselves. “ W e Ar e A l l To rt ur e rs N ow ” 74 If the question of specifically collective accountability for wrongdoing, like that committed at Abu Ghraib, is to be more adequately formulated, transformation of the United States into what Iris Young labeled a “security state” must be appreciated.12 To understand that transformation requires an excursus into the history of liberalism’s efforts to ensure the accountability of political power, especially as exercised by executive agencies. In large measure, whatever success this effort has enjoyed has turned on its capacity to erect and then effectively patrol specific borders between this and that. Although others might be cited, in this section, I am particularly concerned, first, with the spatial boundary between domestic and foreign and, second, with the temporal boundary between routine and emergency. Working in tandem, these distinctions have helped sustain the claim that when executive agencies find it necessary to act at odds with liberalism’s commitment to the rule of law, and so beyond the structure of accountability inherent in law’s articulation of popular will, the harm done to democracy can be minimized by confining such damage to the realm of the external and episodic. If these walls have now been breached, perhaps irreparably, then neither affirmations of collective accountability for torture and other misdeeds committed by those who are said to act in our name nor calls to employ conventional liberal mechanisms (e.g., lawsuits and elections) to rein in executive power retain much plausibility. The historical tale related here has been told with far more nuance and detail by others. Even in bare-bones fashion, though, this tale bears repeating in a post–September 11 context, if only because its specific content will invariably be informed by the present’s distinct imperatives. In saying this, I do not mean to endorse the contention, advanced by persons whose political views are as different as those of George W. Bush and Anthony Lewis, that 9/11 and its aftermath ushered in a fundamentally new order.13 Although I will indicate what I believe is in fact distinctive about the political present in the next section, I also want to claim that the constitution of the security state has tangled roots in American history. And I want to claim that reflection on the question of accountability will remain compromised as long as we accept the foreshortened historical perspective implicit in the statement that everything changed after 9/11, especially since that statement echoes and reinforces the pinched temporal perspective inherent in liberal legal efforts to assign blame for evils like those perpetrated at Abu Ghraib. Erosion of the border between domestic and foreign can be introduced by recalling the implications of the aggrandizement of executive power for the traditional doctrine of separation of powers. Among other things, the separation of powers is intended to constrain power by creating a system of checks and balances among the principal branches of government: “Ambition must be made to counteract ambition,” as James Madison wrote in Federalist 51. In principle, this system enables the national legislature, acting in the name of the people, to check executive unilateralism and so safeguard the rule of law from arbitrary power, and, in principle, this system enables the federal courts, acting in the name of the people’s will, as that will is expressed in the higher law that is the U.S. Constitution, to rein in an unbalanced executive. On the domestic front, one can find reason to express misgivings about the efficacy of this structure of countervailing powers even in the earliest years of the republic; think, for example, of Alexander Hamilton’s aggressive promotion of a national bank as well as the federal government’s assumption of debts incurred by the several states. That said, the expansion of executive power was relatively constrained until at least the Progressive era, when it gained momentum, first, as a result of efforts to regulate the U.S. domestic economy (e.g., through establishment of regulatory agencies such as the Interstate Commerce Commission) and, second, as a result of efforts to mobilize the economy in support of the U.S. military campaign in World War I. Far more rapid acceleration occurred in conjunction with the New Deal’s creation, following passage of sweeping Congressional authorizations, of various social welfare programs, including, for example, the National Labor Relations Act, the Agricultural Adjustment Act, and the National Industrial Recovery Act. Each of these programs dramatically expanded the scope of executive power in the form of administrative agencies whose officials are formally subject to legislative oversight but, for the most part, operate in its absence. The cumulative effect of the New Deal’s programmatic and institutional innovations, to quote Sheldon Wolin, was to tie a vast number of Americans “into the system of state power, a system based on bureaucratic, military, and corporate institutions and operated by elites equally at home in any one of the components.” 14 These ties were twisted still more tightly, argues Wolin, during the Reagan administration (and, I would add, the second Bush administration), not simply through enormous increases “ W e Ar e A l l To rt ur e rs N ow ” 75 76 in military expenditures and adoption of more comprehensive efforts to rationalize the national economy, but also, to cite a very small selection of possible examples, through “the strengthening of agencies of law enforcement; the relative indifference to the rights of the accused; the steady development of surveillance techniques, especially those relying on centralized data collections; federal drug-testing programs; and tightened security procedures for federal employees.” 15 Significant expansion of executive power in the realm of foreign affairs can also be traced to the late nineteenth and early twentieth centuries, especially in conjunction with the early forays of the United States into colonialism (e.g., in the Philippines). That said, the high-water mark of this expansion is most plausibly located in the aftermath of World War II as the United States sought to secure its global supremacy during the Cold War. This expansion was effectively institutionalized in 1947 when Congress adopted the National Security Act, which, among other things, resulted in unification of the command structure of the military under the Joint Chiefs of Staff and creation of two new entities, the National Security Council and the Central Intelligence Agency, each of which report directly to the president. Since passage of the National Security Act, augmentation of executive power in the realm of foreign affairs has continued apace, as illustrated by the conduct of the Vietnam War during the Johnson and Nixon administrations, the Iran-Contra scandal during the Reagan administration, and, last but certainly not least, the Bush administration’s undeclared war in Iraq. Granted, especially following the Vietnam debacle, Congress sought to rein in the executive’s near monopolization of this domain, for example, via the War Powers Resolution (1973) and the Foreign Intelligence Surveillance Act (1978), but, to quote Kim Scheppele, these efforts have proved quite ineffectual. Not only has the president asked permission of the Congress before committing the country to military engagements or foreign policy obligations only as a matter of courtesy rather than as a matter of law (and then only sometimes), but Congress has typically not attempted to enforce any of its powers under the 1970s-era legislation. . . . The balance of powers struck during the Cold War, with a bulked-up executive, a wizened Congress, their disputes only partly subject to refereeing by courts, remains largely intact.16 The aggrandizement of executive power at home and abroad has over time corroded the very distinction between domestic and foreign, and that in turn has vitiated a key premise undergirding liberalism’s affirmation of power’s accountability. Vitiation of the border between domestic and foreign is signified by familiarization of the phrase “national security,” which, as Daniel Yergin notes, had not been part of common parlance before World War II. Its employment 77 postulates the interrelatedness of so many different political, economic, and military factors that developments halfway around the globe are seen to have automatic and direct impact on America’s core interests. Virtually every development in the world is perceived to be potentially crucial. An adverse turn of events anywhere endangers the United States. Problems in foreign relations are viewed as urgent and immediate threats. Thus, desirable foreign policy goals are translated into issues of national survival, and the range of threats becomes limitless. The doctrine is characterized by expansiveness, a tendency to push the subjective boundaries of security outward to more and more areas, to encompass more and more geography and more and more problems. It demands that the country assume a posture of military preparedness; the nation must be on permanent alert.17 Among other consequences, chronic invocation of the imperatives of national security has encouraged the cult of secrecy that shields large swaths of executive conduct from scrutiny. Consider, for example, the Truman administration’s announcement in 1951 of its authority to classify information bearing on national security, which made it more difficult for Congress, let alone ordinary citizens, to know what actions were being taken by the executive branch and hence to hold it accountable for those deeds. Still more important, appeals to national security have had the effect of turning inward exercises of power once more typically confined to foreign affairs. In this regard, consider executive initiation of various programs of internal surveillance during the Cold War, which effectively confused the domestic law enforcement responsibilities of the FBI and the foreign intelligence responsibilities assigned to the CIA. (In this sense, the Bush administration’s decision to authorize the National Security Agency to eavesdrop on citizen and noncitizen alike in order to search for evidence of terrorist-related activity without the court“ W e Ar e A l l To rt ur e rs N ow ” 78 approved warrants ordinarily required for domestic spying continues by more sophisticated technological means the accomplishment of executive ambitions long in the making.) What we see here is not simply the aggrandizement of executive power in the name of national security but, to turn to the second concern of this section, the executive’s growing reliance on the doctrine of emergency to justify such expansion. As already noted, liberal political theory has always been haunted by the specter of unaccountable power, especially when exercised by an executive in response to situations that appear to demand action absent or even violative of legal authorization. A key response to this anxiety, argues Jules Lobel, has been to divide executive action into two distinct spheres: “normal constitutional conduct, inhabited by law, universal rules, and reasoned discourse; and a realm where universal rules are inadequate to meet the particular emergency situation and where law must be replaced by discretion and politics.” 18 Here, once again, the building of a wall and the subsequent policing of the boundary it marks are central to sustaining the tenability of the distinction said to demarcate liberal political orders from those in which power, because unbounded, cannot be held to account.19 This distinction was elaborated by John Locke in his account of prerogative power, and that account was well-known to the framers of the U.S. Constitution. It suggests that under nonexceptional circumstances, executive power will respect the separation of powers, civil liberties, and the rule of law. However, under conditions of political emergency, which are most likely to arise in the context of international relations (which Locke distinguishes as the domain of the “federative power,” although he effectively folds this domain into the executive branch), such respect will be supplanted by forms of extraconstitutional executive discretion, even, as Locke states, “without the prescription of law, and sometimes even against it.” 20 As a rule, Locke believed that a desire for collective security will induce people to acquiesce in the executive’s possession and exercise of prerogative power, and that acquiescence, understood as a form of tacit consent, suffices to render this power legitimate. At the same time, though, Locke insisted that a people is forever authorized to initiate a revolution aimed at restoring violated or purloined rights. Admittedly, given his contention that persons are more disposed to endure than to remedy governmental abuse,21 this insistence may ring hollow. That Locke does not in fact find it empty is largely an expression of his belief in the meaningfulness of the distinction between ordinary and extraordinary. The extraordinary form of power labeled prerogative, on Locke’s account, does not fundamentally compromise or imperil the rule of law, and the commitment to popular sovereignty it expresses, because its exercise can be distinguished from everyday political life and confined to truly exceptional circumstances. In the context of U.S. history, it was Thomas Jefferson who offered the most vigorous expression of Locke’s insistence on the ultimate accountability of executive rule when exercised in the mode of prerogative power. In 1803, for example, Jefferson acknowledged that the Louisiana Purchase was extraconstitutional and, strictly speaking, illegal insofar as it was completed absent a “previous and special sanction by law.” 22 However, and going beyond Locke’s contention that popular acquiescence in the legitimacy of prerogative power should be presupposed unless it meets with express rejection, Jefferson insisted that each specific exercise of such power must secure express ex post facto legislative ratification. In the absence of such ratification, executive agents are subject to legal sanctions for violating the dictates of the law, no matter how noble their motivations might have been. Arguably, the most significant challenge to the Jeffersonian understanding can be found in Abraham Lincoln’s suspension of habeas corpus in 1861 (although one’s understanding of that act depends in large measure on whether or not one thinks that in doing so Lincoln affirmed a doctrine of inherent constitutional powers, including emergency powers, which would then imply that actions taken in the name of necessity are constitutional and so do not require ex post facto ratification).23 Less ambiguous harbingers of the growing irrelevance of liberalism’s distinction between the everyday and the emergency can be located in the late nineteenth and early twentieth centuries. Consider, for example, Theodore Roosevelt’s statement that, in responding to national crises, the president has the “legal right to do whatever the needs of the people demand, unless the Constitution or the laws explicitly forbid him to do it.” 24 Still more pointedly, consider Franklin Roosevelt’s claim that the economic crisis of the Great Depression created an emergency akin to that posed by an invading foreign power and that the powers granted by the Constitution may expand in order to deal with such a crisis. The “ W e Ar e A l l To rt ur e rs N ow ” 79 80 Supreme Court effectively granted this view its imprimatur, first, in 1934, when it applied the emergency powers doctrine to a situation outside the context of war25 and, second, in 1936, when it stated that, in matters relating to national security, the president enjoys exclusive powers that extend beyond the specific affirmative grants found in the Constitution but are nonetheless inherent within it.26 These precedents notwithstanding, Scheppele is surely correct when she suggests that it was the Cold War era that initiated “an indefinite future of crises and a perpetual alteration of both separation of powers and individual rights. In short, the Cold War ushered in an era of ‘permanent emergency’ in which the constitutional sacrifices to be made were not clearly temporary or reversible.” 27 Indeed, from the Great Depression through the Cold War, Congress passed no less than 470 statutes granting the executive discretionary authority to wield one power or another, ordinarily exercised by the legislature, in response to specific states of “national emergency.” Many of these statutes, remaining in effect long after dissipation of the circumstances that initially prompted their passage, were subsequently trotted out by the executive for very different purposes (as when the Feed and Forage Act of 1861 was invoked as authorization for the allocation of funds to invade Cambodia in 1971). Congress imposed a nominal measure of restraint in 1976 when, in response to abuses of executive power, including the Watergate scandal, it passed the National Emergencies Act, terminating all existing states of emergency and requiring, among other restrictions, that the president report to Congress on emergency orders and expenditures. An additional layer of largely symbolic restraint was imposed the following year when Congress passed the International Emergency Economic Powers Act of 1977, which included an affirmation of Congress’s authority to suspend any declared emergency by concurrent resolution but, at the same time, formally authorized the president to declare such emergencies in response to “any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States.” 28 Reviewing presidential invocation of these statutes in order to impose trade, travel, and technology restrictions, adopt wage and salary controls, detain immigrants and refugees, deploy military personnel alongside civilian law enforcement officials engaged in the so-called war on drugs, and so forth, Lobel concludes that the success of congressional efforts to restrain executive emergency authority has proved “dismal. These statutes lie in shambles, wrecked by presidential defiance, congressional acquiescence and judicial undermining.” 29 To summarize, since the New Deal and, still more emphatically, the Cold War (but well before 9/11), the principal borders erected by liberalism in order to protect against unaccountable power, especially unchecked power exercised by the national executive, have eroded, if not collapsed outright. Also, and perhaps best illustrated by official establishment of the National Security Agency in 1954, disintegration of the spatial distinction between domestic and foreign as well as the temporal distinction between the ordinary and the emergency has generated not a political vacuum but a complex of recalcitrant bureaucratic institutions, whether as a result of broad delegations of power from Congress and/or sweeping executive reorganizations. The net result is the constitution of a security state that bears only passing resemblance to the liberal political order imagined by social contract theory. How 9/11 Matters A standard response of the political right to the developments traced in the previous section is to defend the accumulation of executive power in the name of national security; as a rule, though, this comes at the cost of jettisoning the commitment to accountability that is crucial to liberalism’s tale of how power is transmuted into authority. A standard response of the left is to contest the aggrandizement of executive power by calling on liberalism’s traditional mechanisms of accountability in the name of popular sovereignty; as a rule, though, this comes at the cost of failing to see that the border projects that once distinguished liberalism from other regime types are now incapacitated and, more likely than not, cannot be reconstructed. Naming the regime we now inhabit is difficult. This regime, Wendy Brown explains, is not fascism or totalitarian [the Nation’s claims to the contrary notwithstanding] as we have known them historically nor are these appellations likely to be most helpful in identifying or criticizing it. Rather, this is a politi“ W e Ar e A l l To rt ur e rs N ow ” 81 cal condition in which the substance of many of the significant features of constitutional and representative democracy have been gutted, jettisoned, or end-run, even as they continue to be promulgated ideologically, serving as a foil and shield for their undoing and for the doing of death elsewhere.30 82 As noted above, adopting Iris Young’s terminology, I call this regime the “security state,” and, in this section, I indicate the second Bush administration’s participation in the constitution of that state. The second Bush administration was heir, as well as an innovative contributor, to the developments tracked in the preceding section. The complicated relationship between past and present is perhaps best illustrated by this administration’s recasting of the rule of law, which is itself one of the key means by which liberalism, historically, has aimed to erect a barrier against arbitrary power and so ensure power’s accountability. Corresponding to the evaporation of the distinction between war and peace, exemplified by Vice President Richard B. Cheney’s assertion that the struggle to defeat terror “may never end,” 31 we now witness dissolution of the distinction between ordinary legal rules and counterterrorism measures. In consequence, a not insignificant portion of the “ordinary” legal order has been refashioned to fit the exigencies of emergency. In this section, I first cite several elements of the second Bush administration’s policy and doctrine with respect to the realm labeled “foreign affairs” and then turn to the equally suspect realm labeled “domestic” affairs. In the former, the administration has sometimes sought to expand executive prerogative in the name of emergency but to do so under the cover provided by legislative authorization. Arguably, this is what transpired when the president sought and secured from Congress approval to use “all necessary and appropriate force” against those implicated in the 9/11 attacks and, later, to “defend the national security of the United States against the continuing threat posed by Iraq” 32 (although these resolutions may also and perhaps better be read as abdications of Congress’s constitutional responsibility to determine whether and when the United States will go to war). Alternatively, when the Bush administration found it politically expedient to secure authorization for executive prerogative in the form of standing law (as opposed to ad hoc authorizations), more often than not it sought to evade any significant restrictions on, and hence accountability for, the exercise of that power. Perhaps the most obvious example is the USA PATRIOT Act, which, among other things, expands the executive’s authority to search, seize, and detain persons, thereby reducing the judiciary’s authority to review and limit such actions; allows for greater sharing of information between intelligence and law enforcement agencies, thereby blurring the line between civilian and military rule; and expands the jurisdiction of the Foreign Intelligence Surveillance Act, thereby permitting the FBI to obtain secret warrants for intelligence gathering without observing the restrictions that apply to searches granted for ordinary law enforcement purposes. Four years after 9/11, following adoption of minor cosmetic modifications, both houses of Congress voted to extend indefinitely the provisions of the PATRIOT Act that were scheduled to expire, and in doing so, went a long way toward normalizing the exceptional. Such normalization expands its scope in yet another way, as the Justice Department employs the powers granted in the PATRIOT Act to prosecute criminal investigations that have little or no connection to terrorism, including cases dealing with white-collar crime, child pornography, and drug trafficking. Importantly, the Bush administration made clear that it considered congressional authorization, whether in the form of resolutions or standing laws, a useful but not a necessary ingredient of the exercise of its power. This is perhaps best illustrated by the debates, immediately following 9/11, about how to deal with former members of the Taliban regime, members of Al Qaeda, and, more generally, those suspected of involvement in terrorism. Whereas some argued that these persons should be handled in accordance with a military model derived from the conventions of war, others argued that they should be handled in accordance with established judicial tribunals employing domestic criminal law. As Ruti Teitel notes, the Bush administration opted for neither of these two possibilities: The position that emerged is that the military appeared not to be accountable to the ordinary domestic legal regime, but neither was it subject to a general application of an international humanitarian realm. Whereas in ordinary times the military would have been fully subject to a juridical regime, what became apparent was the attempt to use September 11 as an occasion for an “extended” emergency and a state of exception regard“ W e Ar e A l l To rt ur e rs N ow ” 83 ing the law. More and more, the administration called for law that was “exceptional.” The claim was that because the United States was in an exceptional position, whatever related law was exceptional, and determining instances of departure, or exception, from law would be fully up to the administration.33 84 In order to see how, after 9/11, the traditional opposition between the rule of law and the rule of the exceptional became not a problematic dilemma within liberalism but a distinction without much of a difference, recall (1) the executive order of November 13, 2001, creating military tribunals whose procedures are bound neither by U.S. criminal law nor by the rules appropriate to the conduct of military courts martial, (2) invention of the category of “enemy combatant” in order to elude restrictions on the treatment to which prisoners of war are otherwise subject under the Geneva Conventions, and (3) the choice to define Guantánamo Bay as a site of detention, which, although entirely under the control of the U.S. government, is nonetheless deemed outside the boundaries of the United States and so exempt from the jurisdiction of its courts and hence any habeas petitions that might be filed therein. These examples illustrate the second Bush administration’s most pointed (but by no means unique or unprecedented) contribution to the constitution of the security state. All of these measures were taken in the name of an emergency in order to escape the forms of accountability imposed by conventional legal processes. Yet, at the same time, all were justified by the Bush administration through reference to the Constitution’s grant of power to the president in his capacity as head of the executive branch and/or as commander in chief of the armed forces. Specifically, so the argument goes, because Article II does not expressly indicate what powers are granted to the executive branch, unless expressly forbidden by the Constitution, the executive’s inherent powers exist without limit.34 A grant of unlimited power can also be found in Article II’s commander-in-chief clause, which authorizes the executive to initiate military action absent congressional authorization whenever there is a perceived threat to the nation’s security.35 Together, these positions add up to what Benjamin Wittes calls a creed of “Article II fundamentalism” whose essential tenet reduces to “the same basic position: Trust us.” 36 Granted, on rare occasions, the Supreme Court rebuked the president for overreaching, as it did in Rasul v. Bush, 124 S.Ct 2686 (2004), and, later, in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). And, on rare occasions, Congress reconfigured specific displays of executive prerogative, as when it passed the Military Commissions Act of 2006, which ignored most of the substantive constitutional concerns registered in Hamdan but furnished a veneer of legality to the tribunals created in late 2001. However, when located within the broader historical context elaborated in the previous section, and when considered in light of the Bush administration’s contention, advanced in various signing statements, that it considers itself free to ignore challenges to its exceedingly broad reading of Article II, one would be hard pressed to represent the actions of the Court and Congress as a restoration of meaningful judicial oversight or a significant legislative contestation of rule by executive fiat. Much the same blurring of the line between the rule of law and rule by executive discretion can be found on the field once designated as “domestic.” Perhaps the most profound manifestation but also one of the most significant causes of this conflation is that consummate act of faux border fortification: establishment of the Department of Homeland Security. As Amy Kaplan has suggested, the founding of this bureaucratic behemoth, which merged twenty-two federal agencies into one, signifies disintegration of the very borders it is said to reinforce: The homeland is not like the home front for which war is a metaphor; homeland security depends on a radical insecurity where the home itself is the battleground. If every facet of civilian life is subject to terrorist attack, if a commercial airliner can be turned into a deadly bomb, then every facet of domestic life . . . must be both protected and mobilized against these threats. Homeland security calls for vast new intrusions of government, military, and intelligence forces not just to secure the homeland from external threats but also to become an integral part of the workings of home, which is in a continual state of emergency.37 On the domestic front, perhaps the most unsettling manifestation of the logic of homeland security is the post-9/11 detention on U.S. soil of foreign nationals and citizens alike, sometimes without charge, without a hearing, without access to a lawyer, and without judicial review. This “ W e Ar e A l l To rt ur e rs N ow ” 85 86 practice becomes still more unsettling when one considers the parallels between it and the practice of extraordinary rendition, whereby foreign nationals, declared outside the protection of federal and international law, have been secretly seized and then removed to the prisons of governments not known for their observance of the niceties of due process. Much like the “ghost detainees” subject to extraordinary rendition, the very fact that those seized within the United States have themselves often been designated as “detainees,” as opposed to “criminal suspects,” has the effect of rendering them unclassifiable according to the conventional categories of law (although, once again, their detention is represented as a constitutional and so lawful expression of executive prerogative). While the indefinite and incommunicado incarceration of suspected terrorists is perhaps an extreme symptom of the logic of homeland security, it is worth recalling that the treatment now often meted out to undocumented and/or illegal aliens residing within the territorial boundaries of the United States is not entirely dissimilar. The war on terror, note Christopher Eisgruber and Lawrence Sager, has “made hash” of the boundaries between domestic law and the international arena by “blend[ing] criminal law enforcement with immigration policy, foreign intelligence operations, and military force.” 38 When immigration authorities are designated as administrative agents of the national security apparatus, when they are officially tasked with “eliminating vulnerabilities in the nation's border, and with economic, transportation and infrastructure security,” 39 when they are granted broad discretionary power to conduct proceedings in secret and to deport persons with minimal if any judicial oversight, it should come as no surprise that noncitizens as well are routinely denied the protections that liberalism traditionally afforded those charged with criminal offenses. In sum, within the borders of the United States (to the extent that this distinction retains any sense), we witness the creation of a vast army of unelected administrative agents whose discretionary rule, for the most part, is accountable to neither legislature nor court, complementing the hollowing out of congressional and judicial authority with respect to matters beyond the country’s borders. (And if one were so inclined, one could readily extend this analysis to the status of welfare recipients as well.) These examples suggest not the formation of an utterly lawless regime but, rather, within an order that continues to understand itself in terms of the categories provided by liberal contractarianism, the more insidious creation, multiplication, and institutionalization of what David Dyzenhaus calls “grey holes.” Such holes are “spaces in which there are some legal constraints on executive action . . . but the constraints are so insubstantial that they pretty well permit government to do as it pleases.” 40 As such, they are more harmful to the rule of law than are outright dictatorial usurpations, first, because the provision of limited procedural protections masks the absence of any real constraint on executive power and, second, because location of the authority to create such spaces within the Constitution implies that, in the last analysis, they bear ex ante authorization by the people. When created, in other words, they may receive but do not require ratification, whether by Congress or by those whom its members are said to represent. What this means in effect is that the second Bush administration dispensed with Jefferson’s stipulation that extraconstitutional executive acts (or, rather, acts that Jefferson deemed to be outside those constitutionally permitted) require ex post facto ratification and with Locke’s contention that, however unlikely, at least in principle, specific exercises of extralegal prerogative power (or, rather, acts that Locke deemed to be outside those legally permitted) are properly subject to revolutionary rejection. What one finds in the second Bush administration, then, is a denial of both models of accountability combined with an aggressive commitment to the constitution of a security state that is liberal only in name. As it extends its reach, perfection of that state renders the prospect of popular repudiation of prerogative power ever more chimerical, and, indeed, such perfection renders recognition of the problematic character of the exercise of such power ever less likely. Disavowing Accountability under the Security State The security state is not readily understood in terms of liberalism’s commitment to the rule of law or in terms of the social contractarianism that represents such rule as an articulation of popular sovereignty. In its ideal typical form, this is a state in which formal governmental institutions are dominated by the imperatives of executive prerogative justified in the name of national security and in which the domain of law is ever more completely colonized by the imperatives of emergency decree and admin“ W e Ar e A l l To rt ur e rs N ow ” 87 88 istrative discretion. To share in the exercise of political power within this regime is, in large measure, to partake in the spectacle of state power in its more brutal forms, as when Americans were invited to become vicarious participants in the “shock and awe” aerial bombardment campaign that toppled the regime of Saddam Hussein or, alternatively, as Donald Pease has suggested, when the current administration “encouraged the formation of a society of captivated spectators who agreed to the abridgement of their civil liberties in exchange for the spectacle” of detainees “disappearing into the maze of an unaccountable juridical system,” 41 whether at Guantánamo, within the United States, or inside secret CIA prisons in Eastern Europe. The authority of the security state mimics that of its liberal counterpart insofar as it is predicated on a kind of tacit consent on the part of the governed. Specifically, as Iris Young argues, the security state is based on a “bargain.” The content of this bargain, though, is unlike that offered by classical liberalism as the formal ground of governmental authority and, so, accountability. In a nutshell, that content reduces to the following: “obey our commands and support our security actions, and we will ensure your protection.” 42 This bargain differs from that imagined by Locke (although it is not altogether unlike that imagined by Thomas Hobbes) to the extent that it is rooted not in a collective obligation grounded in a rational act of mutual promise making but, rather, in the interlocking passions of fear and desire. Such fear is not entirely without foundation, but, to a considerable degree, it is a passion manufactured by mass media that profit from obsessive speculation regarding possible future attacks, no matter how statistically slight their concrete probability, and by politicians whose election and reelection are contingent on fear’s chronic cultivation: “Public leaders invoke fear,” explains Young, “then they promise to keep those living under them safe. Because we are afraid, and our fears are stirred by what we see on television or read in the newspaper, we are grateful to the leaders and officers who say that they will shoulder the risk in order to protect us.” 43 Such fear is also bound up with the incitement of desire, for, anxiously, sometimes desperately, we seek the reassurance offered via this bargain. As such, this “contract” positions those who “agree” to its terms as those who need something they do not currently have but which others have promised to provide in return for acquiescence. The bargain at the heart of the security state also differs from its traditional counterpart insofar as it dispenses with the two features, equality and freedom, that Locke stipulates as indispensable preconditions of participation in the social contract. Democratic equality, argues Young, is not a matter of equal power per se but of equal right and responsibility to participate in making the political judgments that shape the exercise of collective power; absent that premise, it makes little sense to render those entrusted with positions of governmental power accountable to those in whose name it is exerted. “Institutions of due process, public procedure and record, organized opposition and criticism, and public review both enact and recognize such equal citizenship.” 44 Granted, the fear engendered by terrorism is peculiarly egalitarian in the sense that few consider themselves entirely immune to its random threats. That said, approbation of the ruled within the security state takes the form of gratitude on the part of those who have been positioned as more or less helpless dependents, as something akin to women and/or children under the care of a (male) protector, and, if that is so, the contract of the security state cannot be imagined as a bargain among those who are equal, let alone among those who are in a position to reclaim their equality should they one day conclude that this deal is not all it is cracked up to be. Nor can this deal be imagined as a bargain among those who are free. Hobbes notwithstanding, it cannot be said that those who elect to enter into this bargain because they fear violent death, or because they feel perpetually vulnerable to unseen dangers, are free. Or, more precisely, they cannot be said to be free in the sense required by liberal theory if this theory is to sustain the claim that entry into the contract generates political obligation because the participants are “free,” where this term means something akin to “capable of autonomous choice.” A fearful, infantilized subject, one who renders obedience in order to ensure protection from an executive masquerading as a father, is no more capable of meaningful consent than is a child. The language appropriate to such a relationship is closer to that of domination and subordination. Granted, this is not a form of subordination, which, like torture, eliminates all agency and possibility for meaningful consent by reducing what was once a human being to a body in pain, but neither is it a form of rule that is reasonably understood in terms of popular sovereignty and collective accountability for governmental conduct. “ W e Ar e A l l To rt ur e rs N ow ” 89 Nor, finally, is it apparent in what sense the regime created by this bargain is democratic, for its perpetuation can tolerate little dissent from the rule of those who promise security. Here, Young’s analogy of a woman who participates in the “logic of masculinist protection” is instructive: In return for male protection, the woman concedes critical distance from decision-making autonomy. When the household lives under a threat, there 90 cannot be divided wills and arguments about who will do what, or what is the best course of action. The head of the household should decide what measures are necessary for the security of the people and property, and he gives the orders that they must follow if they and their relations are to remain safe. . . . Feminine subordination, in this logic, does not constitute submission to a violent and overbearing bully. The feminine woman, rather, on this construction, adores her protector and happily defers to his judgment in return for the promise of security that he offers.45 Because it threatens the raison d’être of the state, dissent must be deemed a dangerous anachronism, the practice of which imperils everyone. This understanding, as noted earlier, warrants unauthorized surveillance of domestic groups that question governmental policy; indefinite detention of immigrants, documented and undocumented; and vitiation of those branches of government that seek to contest or oversee the prerogatives, punishments, and preemptive strikes of a militarized executive claiming to safeguard its charges from diabolical aggressors who lurk everywhere. Internal division, in short, is equated with weakness; civic participation, except in certain highly ritualized modes, with a threat to order; and citizenship with endorsement, or at least passive acceptance, of the suspension of civil liberties required by a perpetual state of normalized emergency. If this characterization of the security state is apt, what are its implications for the question of accountability, for example, for the atrocities committed at Abu Ghraib? As noted at this chapter’s outset, efforts to limit culpability to those most immediately implicated, whether that be U.S. military personnel on the ground or, more broadly, their superiors in the Pentagon and/or the White House, are predicated on an attenuated form of methodological individualism that aids and abets the antipolitical bent of much liberal legalism. As also noted, critics of the Bush administration (e.g., Danner) have sometimes sought to move beyond such parochial implications by ascribing accountability to all Americans. Although this move is appealing, both because it counters the mendacity of the second Bush administration and because it reanimates the satisfying liberal confessionals that became so fashionable in the late 1960s and 1970s, under present circumstances, this temptation is to be resisted. Appeals of the sort made by Danner foster and prop up a mythological conception of popular sovereignty and so occlude the regime change we now confront. Within the context of the contemporary security state, when it is said that torture is committed “in our name,” it is no longer clear in what sense “we” may be said to be authors of that abuse. Indeed, I would argue that such invocations of collective identity may be read as performative utterances that help call into being and constitute the foundational entity, which they then claim to designate. In other words, when such invocations are advanced, the sovereign people is fictitiously called into being by an ever more groundless appeal that constitutes “us” as the collective author of abuse perpetrated by agents and agencies of executive power. This mode of address involves little more than a reification of and transfer to “the people” of the characteristics said to define the sovereign and neatly bounded individual presupposed by the liberal legal order, which, in turn, furnishes the conceptual foundation for determinations of liability within the context of criminal law. Once “the people” have been invested with comparable autonomy and determinate boundaries as a result of such invocation, they can then be held similarly liable for acts of torture committed in their name. Methodological individualism, however, is a bad premise for thinking about specifically political accountability, whether ascribed to particular legal subjects or to those subjects who, considered as a collectivity, are seen as a popular sovereign. Especially when such invocations are joined to calls to hold Rumsfeld and his ilk legally liable for the deeds of those they ultimately command, whether via conventional modalities of political accountability such as elections or less conventional forms such as impeachment proceedings, this mode of address facilitates an understanding of the sovereign people as a body whose freely given consent is articulated in the form of law duly enacted by its elected representatives acting within the confines of limited government. That, of course, cloaks the transformations noted in the previous two sections and, in particular, the displacement of such “ W e Ar e A l l To rt ur e rs N ow ” 91 92 law, on the one hand, by the discretionary rule of the petty sovereigns that now administer homeland security policy and, on the other hand, by the proliferation of gray holes that enables circumvention of all but the most modest forms of oversight exercised by representative institutions and the courts. In short, such invocations of collective accountability help manufacture the sort of popular sovereign, the “we,” that is required in order to sustain the apparent legitimacy of a regime that now bears little resemblance to that imagined by classical social contract theory, and this in turn cannot help but play into the hands of those interested in masking the machinations of executive prerogative. This “we,” moreover, is composed of persons who, in order to acknowledge their shared accountability, must regard themselves as specifically public beings — that is, they must define themselves as citizens who set aside their “private” selves so that they may acknowledge that what they possess in common (i.e., their mutual culpability) is of greater salience to their identities than those dimensions (e.g., race, class, gender, and life prospects more generally) that divide them from one another. Such invocations, in other words, facilitate the constitution of the nation-state as a homogeneous unity, and that superimposed identity glosses over the fact that some of “us” are immigrants whose access to legal protections is tenuous at best, while others can readily afford the benefits that accompany full citizenship; some draw material benefit from the constitution of the security state, while others are asked to endure the indignities and sacrifices necessary to its perpetuation; and some, by virtue of surname alone, are perpetual suspects, while those more fortunate are unlikely to be detained at the border or listed on the federal government’s no-fly list. Correlatively, uncritical deployment of the term “we” constructs the political community as a self-contained unit, which in turn facilitates the illusion of national unity that is crucial to mobilization of popular support for the “war on terror.” The sine qua non of the security state’s success, Young argues, is maintenance of unity within the body politic: “We affirm our oneness with our fellow citizens and together affirm our single will behind the will of the leaders who have vowed to protect us.” 46 Claims that reinforce the construction of 9/11 as an attack upon a state and its people (rather than, say, as a crime against humanity) call into being an even more politically pernicious “them,” and, in order to perfect this rhetorical binary, the second Bush administration required no additional assistance. Such claims, moreover, foster the sort of collective identity that, in pitting one state against another, invites (but does not necessitate) military responses in the name of national security. Therefore, however unwittingly, when the left affirms collective accountability for Abu Ghraib and like crimes, it proves complicitous in perpetuating the very regime it seeks to criticize. From Liberal Guilt to Complicitous Accountability If what happened at Abu Ghraib is ultimately a manifestation of unaccountable prerogative power, and if invocations of “our” collective accountability for the abuses committed there rest on a tissue of illusions, and if uncritical affirmation of these illusions helps prop up the regime that made these atrocities possible in the first place, then, surely, it is tempting to wash our hands of the whole business. But this, too, is a temptation to be resisted. A wholesale renunciation of accountability is even more unpolitical than is its confinement to those deemed legally liable or, alternatively, its ascription to an undifferentiated “we” bounded by the confines of the nation-state. In this brief conclusion, therefore, I urge that “we” do indeed repudiate “our” responsibility for Abu Ghraib, as that claim is framed in the terms of social contract theory, but that we do so in the name of democratic principles that are not and perhaps cannot be realized within the present regime. Or, to put this differently, I propose that we ask how such principles might be affirmed in opposition to the contemporary security state and, more particularly, its aggrandizement of modalities of power, which, ungrounded and unrestrained, can tender no credible claim to legitimacy. In suggesting this course, I do not mean to urge categorical abandonment of the mechanisms of liberal legal accountability, although this, too, is tempting. Yet I do mean to remind us that because deployment of these mechanisms comes at a steep price, careful strategic calculations are in order before they are enlisted in any particular instance. As noted earlier, these mechanisms lend themselves to scapegoating of the most easily targeted; they share the pinched historical orientation of liberal legalism and so do little to illuminate what might be done to reduce the likelihood of such abuses in the future; they encourage belief in the myth of power’s accountability; and, finally, they are of limited efficacy when, as “ W e Ar e A l l To rt ur e rs N ow ” 93 94 a rule, Congress is cowed into acquiescence by, and the federal courts are pawns of, an executive whose rule is ever more predicated on assertions of secrecy and privilege. Most important, though, reliance on these mechanisms fails to capture the kernel of truth implicit in the title of Danner’s op-ed. Specifically, they fail to grasp the sense in which even if Graner, Rumsfeld, and their like were to be found guilty and then punished, no matter how satisfying that might be, the rest of “us” would not thereby be entirely absolved. To see why that is so, the conventional mechanisms of liberal legal liability need to be supplemented by a specifically political understanding of accountability, and if that understanding is not to bolster the regime it seeks to contest, it must cut itself loose from key premises of the social contractarianism implicit in Danner’s remarks. In order to hint at the contours of such an understanding, in this context, I will confine myself to two of the departures it requires. First, this understanding cannot be predicated on the autonomous agents that classical social contract theory imagines as denizens of the state of nature, nor can it be predicated on the conception of consent that derives from that hypothetical, which, in turn, sustains an anachronistic understanding of popular sovereignty. If we are to facilitate these presuppositional shifts, I suggest that, borrowing a phrase from Christopher Kutz, we adopt the terminology of “complicitous accountability.” 47 This phrase is not to be confused with the liberal legal doctrine of complicity, which holds that an individual can be held culpable for another’s crime if he or she intentionally encourages or aids the second in the commission of that crime and, in consequence, can be charged with “derivative” or “accomplice” liability. True, the idea of complicitous accountability bears connotations of abetment and even collusion in wrongdoing, but it is not meant to imply that the intent of the complier is identical to either that of the wrongdoers in question (e.g., Graner) or that of those officials who arguably authorized its performance (e.g., Rumsfeld). Nor is it intended to imply that the accountability of those who engaged in such deeds, or those who authorized them, is coextensive with those who have but a modest capacity to reshape the existing regime. Instead, and appropriating a central notion advanced by much feminist theory, complicitous accountability is predicated on a relational understanding of conduct, one that reminds us that human action is always implicated with as well as conditioned by the actions of others. This understanding invokes the etymology of this term (com = with + plico = to fold), which suggests that actions are invariably enfolded together, spatially and temporally, in ways that are beyond anyone’s full comprehension and control. Accountability predicated on an acknowledgment of complicity is not assumed as a result of voluntary choice or deliberate endorsement. Instead, as a consequence of joint enmeshment in complex and historically specific constellations of power relations, such co-implication is for the most part a fruit of habitual submission to the current order of things. In the security state, as Young reminds us, that submission is often rooted in fear and, more specifically, a desire to be shielded from harm. No matter how understandable, though, such acquiescence reproduces the current order of things, and so it is not entirely without reason that we sometimes feel ashamed by the conduct of those who have acted “in our name.” Yet that shame will prove of little moment unless it advances from the personal to the political and, more specifically, unless it gives rise to shared outrage at institutions and exercises of unaccountable power that implicate everyday conduct in profoundly antidemocratic policies and practices. This brings me to the second point of departure from social contractarianism. A key element of the transition from personal to political involves recognizing that just as the notion of complicitous accountability calls into question the sovereign individual presupposed by liberal legalism, so, too, does it call into question the sovereign state that is its counterpart. Complicitous accountability’s subjects, qua states, are constituted by a web of global, national, and regional interactions such that, almost invariably, actions in any single one will have consequences for others and vice versa. Because it acknowledges the confusion of the boundaries (e.g., between domestic and foreign) that once made liberalism a reasonably serviceable doctrine, the category of complicitous accountability renders problematic any effort to confine responsibility within the borders of the nation-state. As such, this category contests Danner’s claim that Graner and his cohorts, or Rumsfeld and his cronies, acted in the name of some foundational community and, more particularly, in the name of a neatly circumscribed citizenry in its capacity as popular sovereign. True, these boundaries are neither irrelevant nor altogether porous, as reflection on the mammoth military resources that can be deployed by the “ W e Ar e A l l To rt ur e rs N ow ” 95 96 U.S. government reminds us, nor can they be considered exhaustive of any determination of complicitous accountability. If, as Young suggests, “responsibility in relation to injustice . . . derives not from living under a common constitution, but rather from participation in the diverse institutional processes that produce structural injustice,” 48 there is no good reason to assume that the borders of accountability will map neatly onto those specified on political maps. By the same token, and as indicated by the participation of private contractors in the interrogation of prisoners at Abu Ghraib, the construction of for-profit corporate prisons in the United States, and, more generally, the decentering (but not the decentralization) of political power, there is no good reason to assume that the borders of accountability will map neatly onto liberalism’s traditional divide between state and civil society.49 There is nothing inherently or necessarily democratic about this understanding of complicitous accountability. At most, I can claim that it evades certain of the antipolitical pitfalls of an understanding based in social contractarianism, as I have just suggested, and that it opens up avenues of inquiry effectively foreclosed by liberal legalism. For example, the liberal doctrine of criminal complicity is defined primarily by a backward temporal orientation insofar as its aim is to assign blame, comprehended as guilt, for already accomplished deeds and then assign appropriate punishments. By way of contrast, the notion of complicitous accountability is more ambiguous in its temporal orientation. It involves an acknowledgment of participation in the relations of power that sometimes generate atrocities like those committed at Abu Ghraib, but it also involves an appreciation of the reach of those relations into an uncertain future for which we cannot help but bear some measure of responsibility. In addition, whereas the liberal legal doctrine of accountability, when extended to a people, performatively participates in reifying a false universal, the notion of complicitous accountability reminds us that implication in power is never symmetrical. Or, rather, co-implication in the processes that generate injustices, structural as well as particular, is never distributed equally but varies in terms of position, privilege, and power, and so the opportunity and capacity to reshape relational entanglements. This recognition offers absolution to no one, but it does remind us that judgments of accountability can never be made apart from inquiry into the institutionalized inequalities that define the contemporary security state and the political economy in which it is thoroughly invested. Finally, the notion of complicitous accountability reminds us that for inhabitants of the contemporary security state, at present, perhaps the best bet is to refuse the seductive but politically ineffectual temptations of liberal guilt (but without denying “our” inescapable implication in evil); to reveal the mythological character of claims of accountability, when formulated in the discourse of liberal contractarianism; and to do so in the aspirational name of democratic norms that at present appear real only in the breach; and, when openings avail themselves, to affirm a shared responsibility to refashion the relations of power, which, although differentially constituting everyone as a subject, leave no one innocent. NOTES 1 2 3 4 Mark Danner, “We Are All Torturers Now,” New York Times, January 6, 2005, section A, late edition. See, in much the same vein, Frank Rich, “The ‘Good Germans’ Among Us,” New York Times, October 14, 2007, section 4, late edition, in which Rich condemns what he calls “Gestapo tactics” employed by U.S. forces in Iraq and writes: “But we must also examine our own responsibility for the hideous acts committed in our name.” For a scholarly argument that presupposes much the same understanding of collective accountability, see Sanford Levinson, “Contemplating Torture,” in Torture (New York: Oxford University Press, 2004), 23 – 43, as well as the concluding section of this chapter, “From Liberal Guilt to Complicitous Accountability.” George W. Bush, “President Outlines Steps to Help Iraq Achieve Democracy and Freedom,” October 24, 2004, http://www.whitehouse.gov/ news/releases/2004/05/20040524-10.html (accessed October 3, 2007). “Article 15-6 Investigation of the 800th Military Police Brigade,” in The Torture Papers: The Road to Abu Ghraib, ed. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), 448 – 49. As of March 2006, ten enlisted soldiers and noncommissioned officers had been prosecuted and convicted in the Abu Ghraib affair. Their punishments, for offenses including dereliction of duty, maltreating prisoners, assault, battery, indecent acts, and conspiracy, ranged from demotion to imprisonment for ten years. See Eric Schmitt, “Iraq Abuse Trial Is Again “ W e Ar e A l l To rt ur e rs N ow ” 97 5 98 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Limited to Lower Ranks,” New York Times, March 23, 2006, section A, late edition. In addition, as of August 2007, the only commanding officer who had stood trial on charges related to the Abu Ghraib scandal was acquitted of all charges except that of disobeying an order to refrain from discussing his case. See Paul von Zielbauer, “Army Colonel Is Acquitted in Abu Ghraib Abuse Case,” New York Times, August 29, 2007, section A, late edition. The consolidated and amended complaint filed by the American Civil Liberties Union and Human Rights First is available at http://www.aclu. org/images/general/asset_upload_file600_23378.pdf (accessed October 2, 2007). Citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Ali argued that the plaintiffs were entitled to compensatory damages for the harms they had suffered. In re: Iraq and Afghanistan Detainees Litigation, 479 F. Supp. 2d 85 (2007). Elizabeth Holtzman, “Torture and Accountability,” Nation 281, no. 3 (July 18, 2005): 20, 24. “Torture and Democracy,” Nation 279, no. 1 (July 5, 2004): 4. Hannah Arendt, “Collective Responsibility,” in Responsibility and Judgment, ed. Jerome Kohn (New York: Schocken Books, 2003), 147. Ibid., 148. Iris Marion Young, “The Logic of Masculinist Protection: Reflections on the Current Security State,” Signs 29, no. 3 (Autumn 2003): 1 – 25. George W. Bush, “President Bush’s Address on Terrorism before a Joint Meeting of Congress,” New York Times, September 21, 2001, section B, late edition; and Anthony Lewis, “A Different World,” New York Times, September 12, 2001, section A, late edition. Sheldon Wolin, “Collective Identity and Constitutional Power,” in The Presence of the Past (Baltimore, Md.: Johns Hopkins University Press, 1989), 22. Ibid., 24. Kim Scheppele, “Law in a Time of Emergency: States of Exception and the Temptation of 9/11,” University of Pennsylvania Journal of Constitutional Law 6 (May 2004): 1020, 1022. Daniel Yergin, Shattered Peace: The Origins of the Cold War and the National Security State (Boston: Houghton Mifflin, 1977), 198, quoted in Scheppele, “Law in a Time of Emergency,” 1016 – 17. Jules Lobel, “Emergency Powers and the Decline of Liberalism,” Yale Law Journal 98 (May 1989): 1390. For an indication of the enormous body of literature on this question, see the bibliography in Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis (Cambridge: Cambridge University Press, 2006). See also chapters 1 – 3 for an account of the principal models that have been offered in 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 response to the dilemma posed by unconstrained executive authority in times of emergency. John Locke, Two Treatises on Government, ed. Peter Laslett (New York: Cambridge University Press, 1965), 375. For a discussion of whether Locke’s doctrine of prerogative power is or is not intended to sanction extraconstitutional exercises of power (when the term “constitution” references a form of higher law that is popularly authorized even though it is more encompassing than formally enacted law), see Gross and Aoláin, Law in Times of Crisis, 122 – 23. For present purposes, I accept their claim that, on balance, Locke suggests “that the prerogative power ought to be recognized for what it is, namely an extra-constitutional and extra-legal power” (122). Locke, Two Treatises on Government, 380. Thomas Jefferson, quoted in Lobel, “Emergency Powers,” 1393. See Gross and Aoláin, Law in Times of Crisis, 48 – 50, 128 – 29, for an elaboration of the controversy regarding how best to understand Lincoln’s suspension of habeas corpus. Theodore Roosevelt, quoted in Lobel, “Emergency Powers,” 1399. Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934). United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Scheppele, “Law in a Time of Emergency,” 1015. International Emergency Economic Powers Act, Pub. L. No. 95-223, 2018, 91 Stat. 1625, 1626-29 (1977) (codified as amended at 50 U.S.C. 1621 [1994], 1701-7). Lobel, “Emergency Powers,” 1414. Wendy Brown, “Neo-liberalism and the End of Liberal Democracy,” Theory & Event 7, no. 1 (2003). Bob Woodward, “Cheney Says War against Terror ‘May Never End,’” Washington Post, October 21, 2001, section A, final edition. See “Authorization for Use of Military Force,” Public Law 107-40 (September 18, 2001), and “Joint Resolution to Authorize the Use of United States Armed Forces against Iraq,” Public Law 107-243 (October 10, 2002). Ruti Teitel, “Empire’s Law: Foreign Relations by Presidential Fiat,” in September 11 in History, ed. Mary Dudziak (Durham, N.C.: Duke University Press, 2003), 197. See, for example, the president’s military order of November 13, 2001, “Detention, Treatment, and Trial of Certain Non-citizens in the War against Terrorism,” in Torture and Truth: America, Abu Ghraib, and the War on Terror, ed. Mark Danner (New York: New York Review of Books, 2004), 78–82. See, for example, the 2002 advisory memo issued by Assistant Attorney General Jay Bybee, in the Office of Legal Counsel, which includes the “ W e Ar e A l l To rt ur e rs N ow ” 99 36 100 37 38 39 40 41 42 43 44 45 46 47 48 49 following claim: “Congress lacks authority under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” Jay Bybee, “Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A (August 1, 2002),” in The Torture Papers, ed. Greenberg and Dratel, 203. Benjamin Wittes, “Checks, Balances, and Wartime Detainees,” Policy Review 130 (April and May 2005): 14. Amy Kaplan, “Homeland Insecurities: Transformations of Language and Space,” in September 11 in History, ed. Dudziak, 64. Christopher Eisgruber and Lawrence Sager, “Civil Liberties in the Dragons’ Domain: Negotiating the Blurred Boundary between Domestic Law and Foreign Affairs after 9/11,” in September 11 in History, ed. Dudziak, 163. “ICE Operations,” U.S. Customs and Immigration Enforcement, http:// www.ice.gov/about/operations.htm (accessed October 31, 2007). David Dyzenhaus, “Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?” Cardozo Law Review 27 (March 2006): 2005–39. Because these holes are gray rather than black, I believe it is too simple to claim, as does Judith Butler in “Indefinite Detention,” Precarious Life: Powers of Mourning and Violence (London: Verso, 2004), that we now live in a regime governed by “a form of power that is fundamentally lawless, and whose lawlessness can be found in the way in which law itself is fabricated or suspended at the will of a designated subject” (95). Donald Pease, “The Global Homeland State: Bush’s Biopolitical Statement,” Boundary 2 30, no. 3 (2003): 17. Young, “The Logic of Masculinist Protection,” 3. Ibid., 13. Ibid., 16. Ibid., 5. Ibid., 9. Christopher Kurtz, Complicity: Ethics and Law for a Collective Age (Cambridge: Cambridge University Press, 2000), 11. Iris Marion Young, “Responsibility, Social Connection, and Global Labor Justice,” in Global Challenges (Cambridge: Polity Press, 2007), 175 – 76. With this claim, however obliquely, I mean to signify my recognition that mechanisms of “disciplinary” and “bio-political” power, to cite two of Foucault’s central categories, now blur liberalism’s border between public and private. More generally, the situation of the security state on the more comprehensive field Foucault calls “governmentality” enormously complicates the questions of accountability posed in this essay.