Rebellious Lawyering in the Security State (original) (raw)
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How to read a case: Ethnographic lawyering, conspiracy, and the origins of Al Qaeda
American Anthropologist, 2023
This article delineates a particular orientation to combining professional legal training and anthropological scholarship that I call ethnographic lawyering. Ethnographic lawyering takes legal form as an object of anthropological analysis, loosely inspired by the Marxist jurist Evgeny Pashukanis's theorization of law as a social relation. If ethnographic method in anthropology entails theorizing from the concepts and experiences of interlocutors, then ethnographic lawyering analytically centers the subjectivities, logics, and relationalities that legal form both presupposes and animates. Ethnographic lawyering brings to light the contingent lives of legal form. To demonstrate this method, the article uses the example of conspiracy in early US court cases involving Al Qaeda, informed by the author’s experiences as an attorney and anthropologist in litigation arising from the war on terror. An ethnographic lawyering approach illuminates how conspiracy’s distinct forms in criminal law, the law of evidence, and tort law each bring far-flung subjects, events, and actions together into reified entities even as they atomize and recombine social relations. This dynamic tension resembles the vertiginous nature of conspiracy theorizing in general.
Protecting Rights as a Counterterrorism Tool: The Case of American Muslims
Countering Violent Extremism: Dialogue, Training and Research, 2012
Developing effective strategies to counter violent extremism (CVE) has proven to be elusive. Despite the plethora of conferences, reports, and expenditures, governments continue to struggle to find the right formula to decrease politically motivated violence. Because the underlying causes of violent extremism are complex and country specific: no one size fits all solution. Each nation must consider its unique economic, political, and social circumstances when seeking to protect its citizens from violence perpetrated by extremists. But government officials should be careful that their CVE strategies do not exacerbate the underlying marginalization, discrimination, and disenfranchisement that create fertile grounds for terrorist recruitment. This paper argues that America’s domestic CVE practices create a paradox: law abiding citizens and residents who openly and legally express their oppositional views or orthodox religious practices are targeted by the state in the form of surveillance, infiltration, investigation, entrapment, and prosecution. Thus, targeted communities reasonably suspect that the campaign against homegrown terrorism is not so much about public safety as it is about irrational bigotry. Members of these communities become less willing to cooperate with law enforcement because they view CVE as merely political scapegoating at the expense of their liberty and livelihoods. When contextualized within America’s aggressive police tactics in the 1960s and 1970s against civil rights, Black Nationalist, and anti-war groups and coupled with the disproportionate focus on African Americans in the ongoing War on Drugs, such suspicions are not far-fetched. Accordingly, this paper makes three recommendations that address the paradox of punishing the innocent for openly expressing grievances shared by the guilty, or worse merely sharing the same immutable characteristics. First, an effective program to counter violent extremism must prioritize protecting the ability of individuals to exercise civil and human rights without fear of state retribution. Second, the American governments must balance the tight rope between engaging Muslim communities to protect them from hate crimes or bolster public safety and heightened attention to Muslims that signals to the public that Muslims warrant extra scrutiny from the state. Selective engagement risks a backlash where the majority resents what it perceives as favoritism towards Muslims or interprets engagement efforts as legitimizing suspicion of Muslims. Either response often leads to private acts of discrimination or violence in employment, schools, mosques, and public places. Third, CVE programs that empower communities as stakeholders in preserving public safety and protection of rights must be careful not to perpetuate existing disparities within Muslim communities along gender, age, class, and race. Insensitivity to internal tensions risks placing the government as an enabler of intra-community gender bias, intra-community ethnic conflicts, and class divisions. In the end, the legitimacy of CVE policies hangs in the balance. The extent to which governments are able to uphold individual rights while preserving public safety directly contributes to defeating the use of violence as a means of seeking justice.
After 9/11: Guantánamo and the Mobilization of Lawyers
SSRN Electronic Journal, 2010
1 "My whole career-twenty-three years-is tied up in the American justice system. I need to believe in it, or else admit that my career has been devoted to a fiction; that I have been a fool. Nobody wants to believe that."-Sabin Willett 2 "When placed in a human rights frame, Guantánamo is often described in terms of the government's denial of rights to the prisoners, but equally important has been the denial of their humanity…through three forms of erasure of the human: cultural erasure through the creation of a terrorist narrative; legal erasure through formalistic legerdemain, epitomized by the government's invention of the "enemy combatant" category; and physical erasure through torture. Much like the death penalty lawyer, our purpose was to intervene in the prevailing, post-September 11th social organization of violence."-Muneer I. Ahmad. 3 2 Guantánamo detainees have habeas corpus rights despite vigorous opposition by the Executive each time. 8 Approaching the court again and again has required persistence on the part of the lawyers. As Justice Souter wrote in his concurring opinion in Boumediene v. Bush, After six years of sustained executive detentions in Guantánamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to the prisoners and the Nation. 9 This extraordinary struggle for habeas relief is the collaborative effort of the Guantánamo lawyers. Until the lawyers approached courts for habeas rulings, the prisoners existed in a legal black hole, seemingly outside the reach of the legal system of mainland America. Since then, details of instances of varying degrees of physical and mental abuse, amounting to torture in some cases, have become widely known. Today it is common knowledge that many of the prisoners were not captured during combat or ever seen in a battlefield, but have been handed over by foreign bounty hunters in exchange for promised American prize money. Many of the prisoners have now been released, but the camp has not been closed. 10 Much has been written about Guantánamo: about the prisoners, the detention policy, conditions at the prison, human rights implications, and myriad other issues surrounding Guantánamo. Lawyers have written and analyzed their own narratives, but their work has not yet been systematically analyzed by sociologists or historians. This article is an effort to 3 fill this vacuum by focusing on the work of the lawyers through documenting the evolution of their work and analyzing their participation. The concept of "heterogeneous mobilization" of lawyers There are several intriguing features of lawyering for Guantánamo prisoners. At first only a few lawyers mobilized over Guantánamo, but over the years, more and more lawyers have joined in the initial efforts. This mobilization has followed a pattern of participation of lawyers from different practice settings and diverse professional, as well as political, backgrounds and beliefs. I call this phenomenon "heterogeneous mobilization" of lawyers. Coalitions have been forged between large law firms, solo practitioners, law schools, and legal NGOs. The collaborations between big law firms which usually represent corporations and those lawyers who usually represent individuals over this work have significant effects on the representations (Heinz et al., 1994, 2003, 2005). Today it has become standard for big law firms to work on Guantánamo matters pro bono, 11 despite the politically charged nature of these representations. Law Centers and law professors regularly contribute to the efforts of legal NGOs and practitioners. The heterogeneity of legal practice settings of participant lawyers is not merely an attribute that reflects the geographical distribution or physical designation of work space and work experiences. Legal practice setting is a proxy for various characteristics of law practice, such as type of client served, nature of work skills, and prestige of the legal work, as well as status of the professional in the profession (Heinz et al., 2005). Lawyers are usually organized hierarchically in the profession based on their legal practice settings.
Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America
Gonzaga Law Review, 2012
The United States government’s preventive counterterrorism strategy is no secret. As the U.S. government adopted a no-tolerance policy to apprehending the 9/11 terrorists, a fear-stricken public watched images of nefarious, dark-skinned, and bearded Muslims flash across millions of television screens. The message was, if there had ever been any doubt, that the 9/11 attacks confirmed Muslims and Arabs are inherently violent and intent on destroying the American way of life. Heightened scrutiny of these communities was thus perceived as not only warranted, but a rational response to an existential threat to the country. Ten years later, the 9/11 terrorist attacks appear to have succeeded in transforming the American way of life for the worse. In our hasty passage of the expansive PATRIOT Act, our fears gave way to the government’s demand for unfettered discretion to preserve national security at the expense of civil liberties for all Americans. As a consequence, America has come to resemble a police state where government surveillance extends into almost every aspect of life. This article focuses on three of the most powerful components of the counterterrorism preventive paradigm and the significant risks they pose to the civil rights and civil liberties of the communities most targeted by the policies - Muslims, Arabs, and South Asians. The current preventative paradigm for countering terrorism risks infringing on First Amendment protected activities and misdirects limited law enforcement resources away from criminal activity. In addition to wasting limited resources, religious and racial profiling erodes trust between law enforcement and Muslim communities. To the extent constructive relations between communities and law enforcement bolsters public safety, the government has an interest in curtailing arbitrary and overreaching counterterrorism enforcement. The aggressive use of “material support to terrorism” is the fall back against individuals that the government cannot prove are engaged in terrorism. Indeed, the charges are found in most “terrorism-related” cases where a government informant plays a leading role in the attempted plot. The far-reaching and devastating effects of broadly interpreted material support laws on American Muslim charities and Muslim donors, as well as the broader American nonprofit sector, effectively criminalize otherwise legitimate charitable giving, peace building, and human rights advocacy. As a result, religious freedom rights are chilled as Muslims are deterred from practicing their faith fully from fear of inviting unwanted government scrutiny. In addition to calling for more judicious enforcement of material support laws not based on political ideology or religious belief, this paper argues for the need for a specific intent requirement in the law as a means of ensuring innocent but unpopular individuals are not targeted for prosecution. The most recent and troubling developments in the preventive paradigm – the racial subtext of homegrown terrorism as a “Muslims only” club. The current debate about homegrown terrorism facilitates selective and arbitrary enforcement of counterterrorism laws against Muslims, while many non-Muslims commit or attempt to commit deadly acts of terror undetected. Notwithstanding the rise in terrorism by militias and right wing extremists, law enforcement has developed counterterrorism strategies based on essentialist stereotypes of terrorists as religious Muslims. Some Congressional leaders have followed suit by calling for more aggressive scrutiny of mosques, Muslim community organizations, and Muslim student groups. Furthermore, they seek to deputize Muslim religious leaders to spy on their congregations with little regard for the broad, adverse implications on religious freedom for all Americans. The article concludes by calling for smarter, more efficient policies that focus on criminal activity rather than false stereotypes that stigmatize entire communities as suspicious and disloyal. To the extent that Muslims, Arabs, and South Asians are the “miner’s canary” in forecasting the post-9/11 loss of civil rights and liberties for all Americans, their experiences demonstrate America’s downward progression away from the Founding Fathers’ vision of a society where individuals can speak, assemble, and practice their faith free of government intervention or persecution.
Routledge, 2014
This book assesses the impact of post-9/11 domestic counterterrorism policy on US political life. It examines political discourse, law, the institutional architecture of the state and its relations with the population, and shows that 'homeland security' is a project with wide-ranging implications for democratic institutions and culture. These implications are addressed through a novel approach which treats law and the state as social relations, and relates developments in law to those in the state and in social dynamics. On this basis, the book examines the new political representations in counterterrorism discourse, especially regarding the relation between the state and the population. It examines the form and content of counterterrorism law, the powers it provides, and the structure and functions it prescribes for the state. Moreover, by focusing on the new Department of Homeland Security and the restructuring of the intelligence apparatus, the book assesses the new, intelligence-led, policing model. Finally, it examines forms of popular support and resistance to homeland security, to discuss citizenship and state-population relations. The author concludes that homeland security has turned the US into a hybrid polity; the legal and political institutions of democracy remain intact, but their content and practices become authoritarian and exclude the population from politics. These legal and political forms remain operative beyond counterterrorism, in the context of the present economic crisis. They seem to be a permanent configuration of power. This book is an indispensable companion for students of (counter-)terrorism and security studies, politics, human rights, constitutional and criminal law, American studies and criminology. Contents List of abbreviations viii 1 Introduction: homeland security, the US polity, and social dynamics 1 2 Politics, the state and law: a strategic-relational approach 11 3 11 September 2001: a social, political and legal charting 4 Heralding a new politics: the war on terror discourse 5 A blueprint of power: legislating counterterrorism 6 Counterterrorism legislation and the law-form 7 The Act and the state: implementation, friction, resistance 102 8 Department of homeland security and police restructuring 117 9 Total intelligence, intelligence-led policing, 'totalitarian' state? 10 The political significance of intelligence: government by experts 151 11 Citizen corps: homeland security citizenship 12 Resistance to homeland security 13 Repression
Suicidal Terror, Radical Evil, and the Distortion of Politics and Law
Theoretical Inquiries in Law, 2004
One of the main characteristics of this phase of the Israeli-Palestinian conflict is the resort by Palestinian groups to suicidal terror This paper focuses on the unique nature of suicidal terror, since, I believe, it is this kind of terror that presents the most immanent threat to the foundations of politics and law in the free world. The article begins with a phenomenological exploration of the effect of suicidal terror on politics in Israel, inspired by the work of Hannah Arendt. It presents the various manifestations of the suicidal terror as a new Paradigm of Violence. This new paradigm poses a great threat on politics: as the terrorists waive their effort to stay alive, deterrence becomes useless; the Israeli politics, in response, redraws the boundaries of the collective according to demographic lines; the feelings of helplessness reduces politics to personal tragedies giving up on normative arguments and long term policies. Compassion replaces persuasion. The attempt of an organized army to respond effectively to suicidal terror is ridden by the dilemma of effectiveness-legitimacy, that is, the more the response is effective, the more difficult it becomes to retain the distinction between the actions of the army and the actions of the terrorist. Moreover during the attempt to bring the actions of the army to the review of the court, the legal system itself is infected by the same dilemma. The Senior Lecturer, Tel Aviv University Law Faculty. I would like to thank Doreen Lustig for her devoted research and comments, under very trying conditions. I thank Dana Rothman and Yael Simon for their careful editing and the Theoretical Inquiries in Law editors for their many good comments. This research has been made possible by grants from the Cegla Center for Interdisciplinary Research of the Law, and the
Hastings Law Journal, 2005
Law. I acknowledge with appreciation the financial support provided by McGill University through the McGill Graduate Studies Fellowship, and by the Social Sciences and Humanities Research Council of Canada through the Canadian Graduate Scholarship. I am indebted to Professor Stephen Toope for his invaluable insight and guidance. I acknowledge the superb work of the Hastings Law Journal, especially Emily Cohen and John F. Stanley, for their thoughtful and instructive editorial suggestions. I thank Professors Eyal Benvenisti and Richard Pildes for educating me on these issues and for challenging my thinking in this area of the law. I am also grateful to the rest of the staff at the NYU Center on Law and Security, especially Professors Stephen Holmes and Karen Greenberg, for organizing a stimulating and thought-provoking colloquium on law and security in the post-9/ II era. More generally, I thank Professors Mark Geistfeld and Benedict Kingsbury for their helpful advice. Finally, my deep appreciation goes to Professor Aaron A. Dhir and Mdlissa Landel for constantly engaging the human rights project and for their interest in discussing post-9/i i legal issues with me. I dedicate this piece to Naya Bousmali, whose love and support are a constant source of inspiration. The opinions expressed in this article are my own and do not necessarily reflect the views of the persons listed above. Any omissions or mistakes remain my own. I am available to further discuss these issues at vinjo@'nyu.edu.