class: center, middle, inverse, title-slide # Dirty Wars ## Citizenship in War and National Security ### Jack McDonald --- class: inverse # Pre lecture Discussion Reminder: slides online at .black[https://www.jackmcdonald.org/static/slides/dw/dw-21-lecture-9.html] .question[ What rights do you have as a citizen, and how equal are they with everyone else living in the same territory? ] ??? --- # The Idea Key problem: states are limited in what they can legally do to their own citizens, but citizens can pose threats to the state and their political community Key dilemma: How can, or should, states respond effectively to the threats posed by their own citizens? Key question: What are the consequences of enabling action against your own citizens? Rather than focus upon breaking the rule of law, we're going to focus on how/why states re-shape law, and the consequences of this Three sequential issues: - Citizenship and the rule of law - How states act through bureaucracies and "get things done" - The consequences with meddling with constitutive elements of society ??? --- # Case - Anwar al-Awlaki .left-33[ ![Profile pic of Anwar al-Awlaki](../img/2021/anwar-profile.jpg) .small[ Anwar al-Awlaki ] ] .right-33[ - Dual citizen of the USA and Yemen - Ends up as a radical Islamic preacher by 9/11 - Left the US in 2002 (UK 2002-2004, Yemen 2004-2011) - Imprisoned in Yemen 2006-2007 for terrorism related offences, but released - Linked to AQ/AQAP and key attacks (Nidal Hasan, 2009 Fort Hood shooter; Umar Farouk Abdulmutallab, 2009 "Underwear Bomber" on Flight 253) - 2010 - Obama Administration places him on lethal strike list - 2010 - Failed lawsuit by father & NGOs for injunction against US Government killing him - September 30, 2011 - Killed in US CIA/JSOC drone strike - 2014 - US DOJ discloses memo to NBC that declares targeting al-Awlaki is lawful - 2014 - Appeals court orders Govt to publish memo ] ??? --- class: inverse # Part 1: Citizenship and the Rule of Law ??? --- # The Rule of Law .left-33[ > More: I'd give the Devil benefit of law, for my own safety's sake. Robert Bolt, _A Man for All Seasons_ ] .right-33[ The rule of law is a core component of liberal democratic rule, enabling checks and balances on government to function - Predictable constitutive rules - Predictable, impartial, set of rules that apply to all citizens - Government, agencies, public servants bound by rules - Independent courts that can punish infractions of the law Citizens have both obligations to their community, and legal rights that protect them from unlawful government action Sample restraints on governments/government agents: - Arrest warrants - _habeas corpus_ - Judicial review ] ??? --- # Citizenship and Constitutive Rules .left-33[ .medium[ Polity type matters! Subject: a person who is under the control of or owes obedience to an abstract principle or power. Citizen: A legally recognized subject or national of a state, commonwealth, or other polity, either native or naturalized, having certain rights, privileges, or duties. Slave: One who is the property of, and entirely subject to, another person, whether by capture, purchase, or birth; a servant completely divested of freedom and personal rights. ] ] .right-33[ .medium[ ## Dimensions of citizenship - Legal status, with civil, political, and social rights - Political agency, including participation in a society’s political institutions - Membership in a political community that results in a distinct source of identity (also psychological) ## Republican model of citizenship - Civic self-rule, and rotation of offices - Active participation in politics/society (indivisible) - Emphasises second dimension ## Liberal model of citizenship - A legal status to protect individuals and private associations from interference by the state, or other individuals - Private citizenship, and largely passive ] ] ??? --- # Citizenship in War .pull-left[ ![Fred Korematsu and family, Fred Korematsu and Family - Courtesy of the family of Fred T. Korematsu. This file is licensed under the Creative Commons Attribution 2.0 Generic license.](../img/2021/fred-korematsu-family.jpg) .small[ Fred Korematsu, convicted for refusing to move to one of the internment camps for Americans of Japanese ancestry in WW2 ] ] .pull-right[ Big difference between nation states and empires Citizenship and conscription Wartime regulations Court cases often raised regarding exercise of executive power in war Issues - Treason - Espionage - Citizens fighting for opposition forces - Citizens as foreign fighters ] ??? --- # Citizenship in National Security .pull-left[ .pic80[ ![Chief Senate Counsel representing the United States Army and partner at Hale and Dorr, Joseph Welch (left), with United States Senator Joe McCarthy of Wisconsin (right), at the Senate Subcommittee on Investigations' McCarthy-Army hearings, June 9, 1954. Public Domain](../img/2021/welch-mccarthy-hearings.jpg) ] .medium[ > His primary achievement has been in confusing the public mind, as between the internal and the external threats of Communism. We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. Edward R. Murrow, _See It Now_ ] ] .pull-right[ Given the nature of national security threats, policy responses often affect core components of the relationship between states and citizens At what point can, or should, the state criminalise or suppress freedom of conscience, association, or speech? Issues - Espionage - Subversion - Terrorism - Rebellion - Organised crime ] ??? --- class: inverse # Part 2: Interpreting, Re-Interpreting, and Applying Rules ??? --- # The Administrative State .left-40[ ![Hobbes' Leviathan](../img/r10/leviathan.jpg) State power is exercised through organisations that are restricted to act in specific domains of public life ] .right-40[ .medium[ > The question was always: Who shall make law, and what shall that law be? The other question, how law should be administered with enlightenment, with equity, with speed, and without friction, was put aside as "practical detail" which clerks could arrange after doctors had agreed upon principles. Woodrow Wilson, _The Study of Administration_ **Max Weber:** idealised model of rational, hierarchical bureaucracy **Herbert Simon:** the decision-making process is the central feature of bureaucracy, making value judgements (selecting goals) and factual judgements (paths to pursuing goals) **James Q. Wilson:** Organisational behaviour is product of interaction between rank-and-file, managers, and leaders ] ] ??? --- # National Security Law and Policy .pull-left[ > Sovereign is he who decides on the exception. Carl Schmitt, _Political Theology_ **Decision Levels:** - Executive - Cabinet - National Security Council (Or Equivalent) - Interagency Processes - Department - Leadership - Policy - Individual Agent ] .pull-right[ Schmitt is not a good guide to the process by which the law changes or people lose their rights National security policy is usually a heavily regulated, albeit flexible, policy space **Key problems:** - Regulating secret decisions - Managing fragmented decision-making due to classification of information - Extreme political sensitivity of decisions - Extreme consequences of failure - Adversarial space with low predictability - Intentional grey-areas of permissible activity ] ??? --- class: inverse # Small Group Discussion .pull-left[ - Executive - Cabinet - National Security Council (Or Equivalent) - Interagency Processes - Department - Leadership - Policy - Individual Agent ] .pull-right[ .large[ Where are you most likely to get decisions that bend the law versus breaking the law, in the context of national security? Can you think of any good examples of this? ] ] ??? --- # Dirty Wars and Breaking the Law .pull-left[ Perfectly possible for people to act in a criminal manner on purpose - Individual agents/managers - Organisational leaders - Governments and political leaders This is traditionally guarded against by oversight and accountability mechanisms ] .pull-right[ ![Yes, a meme](../img/2021/rules-kill-chain.jpg) ] ??? --- # Re-Interpreting Rules .left-33[ .medium[ More serious is the fact that civil servants/administrative units have considerable lattitude to interpret and re-interpret the applicable law Herbert Simon: - Organisations make value judgements (selecting goals) and factual judgements (paths to pursuing goals) - Bounded-rationality and satisficing as forms of decision-making, efficiency is a key element of organisations Organisational processes may abuse authorities in one domain to achieve goals in another ] ] .right-33[ > There is significant turnover in the Civil Service, so people might not gain expertise and knowledge of an entire policy area. When the institutional memory is missing, there is less understanding of the past to inform the policy of the future... As one senior official said: > > "One of the notable things… about when Windrush broke was [that] we all had to go and educate ourselves about historic legislation… No one knew off the top of their head what the 1971 Act said, what the rules [were] about British colonies that got independence and what happened to people from those colonies… all of that was 30, 40 years ago. Well, it’s still live – it still matters but nobody had thought about that for a very long period of time." Wendy Williams, _Windrush Lessons Learned Review_ ] ??? Wilson quote is from 1887 https://www.jstor.org/stable/2139277?seq=1#metadata_info_tab_contents --- # Context Switching and Selection .left-33[ ![President's Surveillance Program report cover](../img/2021/psp-cover.jpg) .small[ Report into the Bush Administration's _President's Surveillance Program_, 2001-2007 ] ] .right-33[ > The notion that a situation of factual danger, whereby the existence of the state is threatened, allows for the suspension of the normative universe of a rule of law is provided for in almost every account of modern lawful rule. Nasser Hussain, _The Jurisprudence of Emergency_ War Powers Sovereign Exceptions: - States of siege - Martial law - Emergency powers ] ??? Hussain quote p.16 --- # Changing Rules About Context Selection .pull-left[ > Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process. Eric Holder, _Speech at Northwestern University School of Law_ ] .pull-right[ We've talked about "security contexts" - in this sense, a context is defined by the state agencies that can act against a person Changes to: - Constraints on executive decisions - Power of the executive branch - Authority of bureaucracies - Scope of authority - Constraints on bureaucratic decisions/actions At this point you're messing with the constitutive rules of society, which usually has side-effects ] ??? --- class: inverse # Small Group Discussion .question[ Is revoking the citizenship of suspected terrorists an act of cowardice? ] ??? --- class: inverse # Part 3: Changing Constitutive Rules ??? --- # Citizenship Stripping .left-column[ ![Title page of the German government gazette Reichsgesetzblatt issue proclaiming citizenship laws, published on 16 September 1935. Wikipedia public domain](../img/2020/reichlaw.jpg) .medium[ Reich Citizenship Law Law for the Protection of German Blood and German Honor ] ] .right-column[ > A citizen of the Reich may be only one who is of German or kindred blood, and who, through his behavior, shows that he is both desirous and personally fit to serve loyally the German people and the Reich. The Reich Citzenship Law, Article 2.1 Nuremberg Laws, 1935: German state strips Jewish Germans of their citizenship, rendering them subjects of the state, key precursor to the Holocaust UNDHR, 1948: Right of asylum and right to nationality Convention relating to the Status of Refugees, 1951 (in force 1960). Convention on the Reduction of Statelessness, 1961 And yet: citizenship stripping of dual nationals, denial of citizenship to minority groups ] ??? Agamben homo sacer, bare life, inclusion of life within a sovereign system without political life within it --- # Consequences of Constitutive Meddling .pull-left[ > Trial by jury, trial by fire, rock, paper scissors, who cares? Due process just means that there is a process that you do. The current process is apparently, first the president meets with his advisers and decides who he can kill. Then he kills them. Stephen Colbert > The Home Office said: "British citizenship is a privilege, not a right..." Haroon Siddique, _New bill quietly gives powers to remove British citizenship without notice_ ] .pull-right[ Yes, these issues are limited to a relatively small number of cases/people, but they create precedents Do you trust the next government/administration? Is it possible to trust governments decades in the future? For understandable reasons, this changes the perceived relationship between the government and dual-citizens/minority communities ] ??? --- # How Can Rights Be Protected Via Courts? .pull-left[ > In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of _Bivens_ relief. Aulaqi v. Panetta, _Opinion_ ] .pull-right[ Central problems of indeterminacy, irregularity and executive action: - In order to be able to respond to the unknown character of future threats, the executive branch of government and agencies cannot be specifically regulated - Irregular nature of executive decisions/responses means that it is difficult to predict the specific decisions in advance Courts typically reactive in this space Some actions are (loosely) amenable to legal remedy (citizenship removal, detention), others are not (torture, lethal action) ] ???