NOTES

THE BIRTH OF THE COUNTERREVOLUTION

1. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, approved December 13, 2012, updated for release April 3, 2014, declassification revisions December 3, 2014 (hereafter “Senate Report”), pp. 85 and 87.

2. Senate Report, pp. 90, 40, 42, and 43–44 of “Executive Summary.” Regarding the last incident, by the sixth day of the torture, the CIA interrogators believed the detainee had no useful information and none was obtained. Senate Report, pp. 42 and 45–46 of “Executive Summary.”

3. Senate Report, pp. 3, 4, 10, 19n4 of “Findings and Conclusions,” and pp. 44 and 56 of “Executive Summary”; and see Anthony Lewis, introduction to The Torture Papers: The Road to Abu Ghraib, eds. Karen J. Greenberg and Joshua L. Dratel (New York: Cambridge University Press, 2005), xiii–xvi.

4. The Bureau of Investigative Journalism, “YEM178, December 6, 2014,” https://www.thebureauinvestigates.com/2014/01/06/yemen-reported-us-covert-actions-2014/#YEM178; and see embedded video here: https://www.thebureauinvestigates.com/2014/01/06/yemen-reported-us-covert-actions-2014/#YEM178.

5. Charlie Savage and Scott Shane, “US Reveals Death Toll from Airstrikes Outside War Zones,” New York Times, July 1, 2016, http://www.nytimes.com/interactive/2016/07/01/world/document-airstrike-death-toll-executive-order.html; for a full archive surrounding the drone wars, see The Drone Memos: Targeted Killing, Secrecy, and the Law, ed. Jameel Jaffer (New York: The New Press, 2016); for theoretical perspectives on drones and air power, see Derek Gregory, “From a View to a Kill: Drones and Late Modern War,” Theory, Culture, and Society 28, no. 7–8 (2011): 188–215; and Sven Lindqvist, A History of Bombing, trans. Linda Haverty Rugg (New York: The New Press, 2001); and for drone-victim statistics as per the Bureau of Investigative Journalism on April 23, 2015, see https://www.thebureauinvestigates.com/2015/04/23/hostage-deaths-mean-38-westerners-killed-us-drone-strikes/.

6. The Bureau of Investigative Journalism, “Drone Warfare,” accessed April 23, 2017, https://www.thebureauinvestigates.com/projects/drone-war.

7. Grégoire Chamayou, A Theory of the Drone, trans. Janet Lloyd (New York: The New Press, 2015), 14.

8. John Ribeiro, “Secret Court Extends NSA Surveillance Rules with No Changes,” IDG News Service, December 9, 2014, http://www.pcworld.com/article/2857352/us-court-extends-nsa-surveillance-rules-in-current-form.html; and Office of the Director of National Intelligence, “Joint Statement from the Office of the Director of National Intelligence and the Office of the Attorney General on the Declassification of Renewal of Collection Under Section 501 of the Foreign Intelligence Surveillance Act,” IC on the Record, December 8, 2014, http://icontherecord.tumblr.com/post/104686605978/joint-statement-from-the-office-of-the-director-of.

9. Klayman v. Obama, 957 F.Supp.2d 1, at p.33 (DDC 2013), reversed in Obama v. Klayman, 800 F.3d 559 (DC Cir. 2015).

10. For the most part, these NSA surveillance programs continue unabated. The Section 215 bulk-collection program itself was amended in June 2015 under the USA FREEDOM Act so that the telecommunication companies, rather than the NSA, would hold our personal data and make it available to the government on request. For quotations in paragraph, see Glenn Greenwald, “XKeyscore: NSA Tool Collects ‘Nearly Everything a User Does on the Internet,’” Guardian, July 31, 2013, http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data; Glenn Greenwald and Ewen MacAskill, “NSA Prism Program Taps into User Data of Apple, Google and Others,” Guardian, June 6, 2013, http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data; and Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (New York: Henry Holt, 2014), 153–157.

11. DOI’s Inspector General for NYPD, “An Investigation of NYPD’s Compliance with Rules Governing Investigations of Political Activity—August 23, 2016,” http://www1.nyc.gov/site/oignypd/reports/reports.page.

12. Matt Apuzzo and Adam Goldman, “With CIA Help, NYPD Moves Covertly in Muslim Areas,” Associated Press, August 23, 2011, https://web.archive.org/web/20120309020234/https://www.ap.org/pages/about/whatsnew/wn_082511a.html; and “Highlights of AP’s Pulitzer Prize–Winning Probe into NYPD Intelligence Operations,” Associated Press (with links to stories and documents), https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

13. Intelligence Division, Demographics Unit, “Newark, New Jersey Demographics Report,” http://hosted.ap.org/specials/interactives/documents/nypd/nypd_newark.pdf.

14. As Ganesh Sitaraman opens his book, The Counterinsurgent’s Constitution: Law in the Age of Small Wars (New York: Oxford University Press, 2013), 3: “We live in an age of small wars. Around the world, warfare is no longer characterized by amassed armies on pitched battlefields or even by tank battalions maneuvering to break through enemy lines. Rather, insurgents hibernate in the shadows, emerging only when ready for devastating attack.”

15. See generally Joshua Bloom and Waldo E. Martin Jr., Black Against Empire: The History and Politics of the Black Panther Party (Berkeley: University of California Press, 2014); and Richard Wolin, The Wind from the East: French Intellectuals, the Cultural Revolution, and the Legacy of the 1960s (Princeton: Princeton University Press, 2010), 318–321.

16. James Baldwin, quoted in Imani Perry, “From the War on Poverty to the War on Crime by Elizabeth Hinton,” New York Times Book Review, May 27, 2016, http://www.nytimes.com/2016/05/29/books/review/from-the-war-on-poverty-to-the-war-on-crime-by-elizabeth-hinton.html.

17. Sharon Lafraniere, Sarah Cohen, and Richard A. Oppel Jr., “How Often Do Mass Shootings Occur? On Average, Every Day, Records Show,” New York Times, December 2, 2015, https://www.nytimes.com/2015/12/03/us/how-often-do-mass-shootings-occur-on-average-every-day-records-show.html; Sharon Lafraniere, Daniela Porat, and Agustin Armendariz, “A Drumbeat of Multiple Shootings, but America Isn’t Listening,” New York Times, May 22, 2016, https://www.nytimes.com/2016/05/23/us/americas-overlooked-gun-violence.html.

18. Philip Rucker, “Trump Touts Recent Immigration Raids, Calls Them a ‘Military Operation,’” Washington Post, February 23, 2017, https://www.washingtonpost.com/news/post-politics/wp/2017/02/23/trump-touts-recent-immigration-raids-calls-them-a-military-operation/?utm_term=.f99a5615801e.

PART I: THE RISE OF MODERN WARFARE

1. See generally Fred Kaplan, The Wizards of Armagedon: This Is Their Untold Story (New York: Simon and Schuster, 1983); S. M. Amadae, Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (Chicago: University of Chicago Press, 2003); Jennifer S. Light, From Warfare to Welfare: Defense Intellectuals and Urban Problems in Cold War America (Baltimore: Johns Hopkins University Press, 2003); and Bruce L. R. Smith, The RAND Corporation: Case Study of a Nonprofit Advisory Corporation (Cambridge: Harvard University Press, 1966).

2. Roger Trinquier, Modern Warfare: A French View of Counterinsurgency, trans. Daniel Lee (New York: Frederick A. Praeger, 1964); and Peter Paret, French Revolutionary Warfare from Indochina to Algeria: The Analysis of a Political and Military Doctrine, vol. 6, Princeton Studies in World Politics (New York: Frederick A. Praeger, 1964), 5.

3. See Gérard Chaliand, Guerrilla Strategies: An Historical Anthology from the Long March to Afghanistan (Berkeley: University of California Press, 1982), 7 (arguing that Mao was the theorist who essentially invented revolutionary war: “The point is that guerrilla warfare is a military tactic aimed at harassing an adversary, whereas revolutionary war is a military means whereby to overthrow a political regime”); and Ann Marlowe, David Galula: His Life and Intellectual Context, SSI Monograph, August 2010, p. 27, http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=1016. “Mao is crucial for the history of COIN theory,” she writes or, more simply, “Mao begot COIN as theory.”

4. Richard Stevenson, “President Makes It Clear: Phrase Is ‘War on Terror,’” New York Times, August 4, 2005, http://www.nytimes.com/2005/08/04/politics/president-makes-it-clear-phrase-is-war-on-terror.html.

1. COUNTERINSURGENCY IS POLITICAL

1. Ganesh Sitaraman The Counterinsurgent’s Constitution: Law in the Age of Small Wars (New York: Oxford University Press, 2013), 3, 165; and Chaliand, Guerrilla Strategies, 1.

2. Peter Paret, “The French Army and La Guerre Révolutionnaire,” Journal of the Royal United Service Institution, February 1, 1959, 59–69; and Peter Paret, French Revolutionary Warfare, v.

3. Paret, French Revolutionary Warfare, 7; Marnia Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press, 2008), 19; Marlowe, David Galula, 1. For an in-depth analysis of the reception of Mao among French commanders at the time, see Grey Anderson, “Revolutionary Warfare after 1945: Prospects for an Intellectual History,” paper presented at the CHESS-ISS Conference, “War and Its Consequences,” at Yale University, February 13, 2015 (working paper in author’s possession, June 19, 2015).

4. Paret, French Revolutionary Warfare, 7.

5. S. M. Chiu, “Chinese Communist Revolutionary Strategy, 1945–1949: Extracts from Volume IV of Mao Tse-tung’s Selected Works,” Center of International Studies, Research Monograph 13, December 15, 1961, p. 45.

6. Ibid., 46.

7. Paret, French Revolutionary Warfare, 7.

8. Peter Paret and John W. Shy, Guerrillas in the 1960’s, vol. 1, Princeton Studies in World Politics, rev. ed. (New York: Frederick A. Praeger, 1962), 39.

9. Paret, French Revolutionary Warfare, 10 and 11.

10. Ibid., 12.

11. Paret and Shy, Guerrillas in the 1960’s, 6–15, 17, and 24n9, referring to T. E. Lawrence, “The Evolution of a Revolt,” The Army Quarterly 41 (October 1920); and Peter Paret, “Internal War and Pacification: The Vendée, 1789–1796,” Research Monograph 12, Center for International Studies, Princeton University, 1961.

12. Paret and Shy, Guerrillas in the 1960’s, 40–41.

13. Ibid., 41 and 51.

14. Ibid., 45 and 49.

15. See Jean-Jacques Servan-Schreiber, Lieutenant en Algérie (Paris: Julliard, 1957); Antoine Argoud, “La guerre psychologique,” Revue de defense nationale (March/April 1948); and Jean Nemo, “Réflexions sur la guerre subversive,” December 30, 1958; cf. Grégor Mathias, Galula in Algeria: Counterinsurgency Practice versus Theory, trans. Neal Durando (Santa Barbara, CA: Praeger, 2011), 25–27. On Argoud, see Lazreg, Torture and the Twilight of Empire, 88–93.

16. Bernard F. Fall, “A Portrait of the ‘Centurion,’” in Trinquier, Modern Warfare, xiii and vii; Anderson, “Revolutionary Warfare after 1945.”

17. Trinquier, Modern Warfare, 6, 4, 35; (emphasis added in final quoted excerpt).

18. For biographical details on David Galula, see Marlowe, David Galula; Mathias, Galula in Algeria; and A. A. Cohen, Galula: The Life and Writings of the French Officer Who Defined the Art of Counterinsurgency (Santa Barbara, CA: Praeger, 2012).

19. David Galula, introduction in Counterinsurgency Warfare: Theory and Practice (New York: Frederick A. Praeger, 1964), x; Mathias, Galula in Algeria, 7; and Marlowe, David Galula, 27.

20. Galula, Counterinsurgency Warfare, 56.

21. US Department of the Army, Counterinsurgency, Field Manual 3-24 (Washington, DC: US Department of the Army: December 2006) (hereafter “FM”), 35. As his biographer Paula Broadwell writes in All In: The Education of General David Petraeus, General Petraeus produced the field manual in 2006 while he was at Fort Leavenworth between tours of duty in Iraq. His field manual would be dubbed “King David’s Bible.” Paula Broadwell, All In: The Education of General David Petraeus (New York: Penguin Press, 2012), 54 and 59. See, generally, Fred Kaplan, The Insurgents: David Petraeus and the Plot to Change the American Way of War (New York: Simon & Schuster, 2014).

22. FM, 36.

23. For General Petraeus’s twenty-four-point memorandum, which provided guidance to his field manual, see Broadwell, All In, 59; and David Galula, Pacification in Algeria 1956–1958 (1963; repr. Santa Monica: RAND, 2006), 246. See also Galula, Counterinsurgency Warfare, 58.

24. Galula, Pacification in Algeria, 69; FM, 51; see also FM, 35 (“It is usually not enough for counterinsurgents to get 51 percent of popular support; a solid majority is often essential. However, a passive populace may be all that is necessary for a well-supported insurgency to seize political power”); and David C. Gompert and John Gordon., War by Other Means: Building Complete and Balanced Capabilities for Counterinsurgency (Santa Monica: RAND, 2008), 76 (“The people will decide whether the state or the insurgents offer a better future, and to a large extent which of the two will be given the chance”).

25. Quoted in Broadwell, All In, 59.

26. FM, 41.

27. FM, 39–40, citing Galula, Counterinsurgency Warfare, 89 (emphasis added).

28. FM, 53 (quoting Galula, Counterinsurgency Warfare, 89) and 68; and FM, 150 (quoting from Sir Robert Thompson, Defeating Communist Insurgency, 171). In the University of Chicago Press edition from 2006, the acknowledgements come after the signature and short preface; in the online version, there is the table of contents between them.

29. John A. Nagl, foreword to The U.S. Army/Marine Corps Counterinsurgency Field Manual (Chicago: University of Chicago Press, 2007), xix; and Sarah Sewell, introduction to The U.S. Army/Marine Corps Counterinsurgency Field Manual, xxiv. Petraeus’s field manual “incorporates insight from French counterinsurgency guru David Galula” (Mathias, Galula in Algeria, xiii).

30. Petraeus’s development of this evaluation is contained in the foreword to the 2008 French translation of Galula’s Counterinsurgency Warfare. David Petraeus and John Nagl, foreword to Contre-insurrection: théorie et pratique, trans. Philippe de Montenon (Paris: Economica, 2008). For further analysis, see Mathias, Galula in Algeria, xiii; and A. A. Cohen, Galula, xviii–xviii. Many counterinsurgency practitioners and theorists today agree with General Petraeus’s assessment of the importance and influence of Galula, including General Stanley A. McChrystal, who commanded all US and NATO forces in Afghanistan from 2009 to 2010; the French general Ollivier, head of the strategic nerve-center of the French army (Centre de doctrine d’emploi des forces or CDEF); and the American counterinsurgency expert David H. Ucko. See Mathias, Galula in Algeria, xiii and 111n2; Bertrand Valeyre and Alexandre Guérin, “De Galula à Petraeus, l’héritage français dans la pensée américaine de la contre-insurrection,” Cahier de la recherché doctrinale (June 2009); and David H. Ucko, foreword to Galula in Algeria by Grégor Mathias, xi.

31. One would think one was reading the intellectual historian Richard Wolin’s book The Wind from the East: French Intellectuals, the Cultural Revolution, and the Legacy of the 1960s, tracing the influence of Mao’s thought on French intellectuals such as Michel Foucault, Jean-Paul Sartre, Julia Kristeva, Phillipe Sollers, and Jean-Luc Godard. Perhaps we should add to that list General David Petraeus.

32. FM, 7, 11–13, 13, 14, 11, 159, and 258.

33. Mao Zedong letter, August 26, 1945, in Mao Tse Tung Hsuan Chi vol. 4 (Peking: Jen Min Chu Pan She, 1960), 1151–154, reproduced in S. M. Chiu, “Chinese Communist Revolutionary Strategy, 1945–1949: Extracts from Volume IV of Mao Tse-tung’s Selected Works,” Center for International Studies, Research Monograph 13, December 15, 1961, p. 10–11. See also Mao Zedong, “Questions of Tactics in the Present Anti-Japanese United Front,” Selected Works, vol. 3 (London: Lawrence & Wishart, Ltd, 1954), 193–203.

34. Chiu, “Chinese Communist Revolutionary Strategy, 1945–1949,” 29 and 31.

2. A JANUS-FACED PARADIGM

1. Roger Trinquier, La guerre moderne (Paris: La Table Ronde, 1961); Roger Trinquier, Modern Warfare; Fall, “A Portrait of the ‘Centurion,’” ix; and Machiavelli, The Prince, eds. Quentin Skinner and Russell Price (Cambridge: Cambridge University Press, 1988), 59 (modified translation).

2. Trinquier, Modern Warfare, 8–9.

3. Ibid., 113 and 115.

4. Ibid., 43, 2–22, and 23.

5. Fall, “A Portrait of the ‘Centurion,’” xv.

6. Général Paul Aussaresses, Services Spéciaux. Algérie 1955–1957 (Paris: Perrin, 2001); General Paul Aussaresses, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria 1955–1957 (New York: Enigma Books, 2004); and see also Chaliand, Guerrilla Strategies, 29 (emphasis added).

7. Aussaresses, The Battle of the Casbah, 13; and Aussaresses, Services Spéciaux, 26.

8. Aussaresses, The Battle of the Casbah, 128; and Aussaresses, Services Spéciaux, 155.

9. Aussaresses, The Battle of the Casbah, 19–20; and Aussaresses, Services Spéciaux, 34. The following block quote is at 128 (155–156 in original).

10. Benjamin Stora, Algeria 1830–2000: A Short History, trans. Jane Marie Todd (Ithaca, NY: Cornell University Press, 2001), 50. Marnia Lazreg, in her meticulously researched book Torture and the Twilight of Empire, offers perhaps the most detailed and haunting account of the full ethnography of torture in Algeria. See Lazreg, Torture and the Twilight of Empire, 111–169. General Jacques Massu, The Real Battle of Algiers, quoted in Michael T. Kaufman, “The World: Film Studies; What Does the Pentagon See in ‘Battle of Algiers’?,” New York Times, September 7, 2003.

11. Aussaresses, The Battle of the Casbah, 128; and Aussaresses, Services Spéciaux, 155.

12. Aussaresses, The Battle of the Casbah, 124 and 126; and Aussaresses, Services Spéciaux, 151 and 153.

13. Aussaresses, The Battle of the Casbah, 126; and Aussaresses, Services Spéciaux, 153.

14. Benjamin Stora, Algeria 1830–2000, 50; and see also George Armstrong Kelly, Lost Soldiers: The French Army and Empire in Crisis, 1947–1962 (Cambridge, MA: MIT Press, 1965), 196–205. For further discussion of torture and summary executions, see Lazreg, Torture and the Twilight of Empire, 53–55; and Richard Wolin, The Wind from the East.

15. Aussaresses, The Battle of the Casbah, 129 and 130; Aussaresses, Services Spéciaux.

16. “Colonel Roger Trinquier : la bataille d’Alger,” INA, June 12, 1970, http://www.ina.fr/video/CAF86015674, and on YouTube, https://www.youtube.com/watch?v=JLy_MjvaYhw. Special thanks to Raphaëlle Jean Burns for bringing this to my attention.

17. The leading source to consult here would be Alistair Horne’s A Savage War of Peace—Algeria 1954–62 (New York: New York Review books Classics, 2006). See also Kelly, Lost Soldiers, p. 196 and following.

18. Henri Alleg, The Question, trans. John Calder (Lincoln, NE: University of Nebraska Press, 2006), 84.

19. Jean-Paul Sartre, preface to The Question, by Henri Alleg, xliv.

20. Ibid., xxviii.

21. Geoff Demarest, “Let’s Take the French Experience in Algeria Out of US Counterinsurgency Doctrine,” Military Review (July/August 2010), 24n7, quoting Galula, Pacification in Algeria, 183.

22. Galula, Pacification in Algeria, 118–119. On p. 118 of the text, it is noted that “Bakouch locked Amar in one of the ovens in the bakery and told him that if he did not talk, he would light a fire under the oven. Within ten minutes Amar was screaming to be let out, and he says he’s ready to talk now.” On p. 119, Galula writes that, after inspecting the oven, he finds the system “miraculous” and intends to use it; he requests that any persons using the oven should check with him first (not because he had an ethical concern—he explains that he required it so that he could remain in control).

23. Galula, quoted in Mathias, Galula in Algeria, 62.

24. Galula, Pacification in Algeria, 77 and 103.

25. Demarest, “Let’s Take the French Experience,” 21, quoting Galula, Pacification in Algeria, 262 and 268; and Galula, Pacification in Algeria, 258–261. This includes an appendix in Galula’s text that contains a meditation on why Galula’s efforts had not been as successful as he had predicted, where he discusses his control over the population’s movements and his system for rewarding proof of complete loyalty and punishing evidence of disloyalty. Trinquier, Modern Warfare, 113.

26. See Gompert and Gordon, War by Other Means, 90n8.

27. Fall, “A Portrait of the ‘Centurion,’” xiii; Aussaresses, The Battle of the Casbah, 164; Aussaresses, Services Spéciaux, 196; and Marlowe, David Galula, 41 and 42. See also Mathias, Galula in Algeria, 99. Aussaresses, Galula, and the academic Bernard Fall lectured at Fort Bragg.

28. Kaufman, “The World: Film Studies.”

29. Marlowe, David Galula, 7–9 and 14–15; and Stephen T. Hosmer and Sibylle O. Crane, Counterinsurgency: A Symposium, April 16–20, 1962 (Santa Monica: RAND Corporation, November 1962), xx.

30. Galula, Counterinsurgency Warfare. Galula wrote that book while a research associate at the Center for International Affairs at Harvard University between 1962 and 1964. It was published by Frederick A. Praeger, which published over a dozen other monographs on counterinsurgency theory in the early 1960s. Praeger published the Princeton Studies in World Politics series for the Center of International Studies at Princeton University. Peter Paret was a research associate at the Princeton Center for International Studies starting in 1960, and published both Guerrillas in the 1960’s (with John W. Shy) and French Revolutionary Warfare from Indochina to Algeria in the series.Galula’s relationship with RAND continues to the present. In 2006, the RAND Corporation finally openly published Galula’s 1963 book, Pacification in Algeria, as well as a new edition of the 1962 symposium. See Hosmer and Crane, Counterinsurgency: A Symposium. RAND continues to highlight the work of Galula in its own continuing research on counterinsurgency, such as David Gompert and John Gordon’s 2008 comprehensive 519-page RAND report, War by Other Means.

31. See Mathias, Galula in Algeria, 103, discussing Galula’s influence in Vietnam, including on Operation PHOENIX. Marlowe reports that “Tennenbaum notes that one of the architects of the Phoenix Program in Vietnam, Nelson Brickham, was ‘very taken’ by Galula’s Counterinsurgency Warfare and carted it all over Vietnam with him” (Marlowe, David Galula, 15). However, Marlowe sees less of an influence overall. See Marlowe, David Galula, 14.

32. Paret, French Revolutionary Warfare, 66–76.

33. Paret and Shy, Guerrillas in the 1960’s, 47.

34. Paret, French Revolutionary Warfare, 73 and 74.

35. FM, 252.

36. Broadwell, All In, 204 and 205.

37. Demarest, “Let’s Take the French Experience,” 19.

38. US Department of the Army, Insurgencies and Countering Insurgency, Field Manual 3-24, MCWP 3-33.5 (Washington, DC: US Department of the Army: May 2014); and Anderson, “Revolutionary Warfare after 1945,” 22.

PART II : A TRIUMPH IN FOREIGN POLICY

1. Andy Müller-Maguhn et al., “Treasure Map: The NSA Breach of Telekom and Other German Firms,” Der Spiegel, September 14, 2014, http://www.spiegel.de/international/world/snowden-documents-indicate-nsa-has-breached-deutsche-telekom-a-991503.html.

2. FM, 41.

3. As many commentators note, counterinsurgency theory is often divided into “enemy-centric” and “population-centric” approaches. See, for example, Sitaraman, The Counterinsurgent’s Constitution, 5. I argue that both are dimensions of counterinsurgency theory.

4. FM, 41; and Sitaraman, The Counterinsurgent’s Constitution, 5 and 149.

5. FM, 49.

6. As the historian Edgar O’Ballance writes of the war in Algeria, “one can say briefly that from a military point of view the war in Algeria was lost by the insurgents, but that they won it by political and diplomatic means,” Edgar O’Ballance, The Algerian Insurrection, 1954–62 (Hamden, CT: Archon Books, 1967), 220.

7. FM, 37 and 39.

8. Michael Hayden, Playing to the Edge: American Intelligence in the Age of Terror (New York: Penguin Books, 2016).

9. FM, 51.

3. TOTAL INFORMATION AWARENESS

1. See generally National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004), https://www.9-11commission.gov/report/911Report.pdf; and Richard Posner, Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Lanham, MD: Rowman & Littlefield, 2005).

2. James Bamford, The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America (New York: Anchor Books, 2009), 102; and Daniel Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (New Haven: Yale University Press, 2011), 183–185.

3. David Cole, “Can the NSA Be Controlled?” The New York Review of Books, June 19, 2014, 17, http://www.nybooks.com/articles/archives/2014/jun/19/can-nsa-be-controlled.

4. Dan Eggen and Paul Kane, “Gonzales Hospital Episode Detailed,” Washington Post, May 16, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/05/15/AR2007051500864.html; and Bernard E. Harcourt, Exposed: Desire and Disobedience in the Digital Age (Cambridge, MA: Harvard University Press, 2015).

5. Gompert and Gordon, War by Other Means, 137 and 137n25. For a fascinating early instance of a RAND and Pentagon project to obtain total information awareness about a population, listen to Malcolm Gladwell, “Saigon 1965,” Revisionist History (podcast), season 1, episode 2, http://revisionisthistory.com/seasons.

6. Anthony Lewis, introduction to The Torture Papers, xiii–xvi.

7. Senate Report, 53, 54, and 69.

8. Senate Report, 77.

9. Marie-Monique Robin, Escadrons de la mort, l’école française (Paris: La Découverte, 2004), 55.

10. Senate Report, 77, 30–31, and 33.

11. Ibid., 35.

12. Ibid.

13. Ibid., 18.

14. Ibid., 18, 22, and 23.

15. Ibid., 36, 36–37 (emphasis added), and 38.

16. Ibid., 118.

17. Ibid., 69–70 (gun and drill incidents resulted in the CIA officer and chief of base being disciplined, see Senate Report, 70), 117 (“placing a broom handle behind the knees of a detainee while that detained was in a stress position” resulting in decertification of interrogator), 76 (interrogation plan for Ramzi bin al-Shibh, which becomes template), and 81–82 (interrogation plan for Khalid Sheikh Muhammad).

18. Ibid., 115–116.

19. Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005), 134–135 and 122.

20. Ibid., 119–120.

21. Ibid., 122 and 222.

22. Ibid., 213–214 (emphasis added).

23. Ibid., 227–228, 237, and 360–361.

24. Though these metaphors of ticking time-bombs are themselves so misleading and mask the reality of torture. See generally Michelle Farrell, The Prohibition of Torture in Exceptional Circumstances (Cambridge, UK: Cambridge University Press, 2013).

25. Reproduced in Lu Ann Homza, The Spanish Inquisition, 1478–1614: An Anthology of Sources (Indianapolis: Hackett Publishing Company, 2006), 45–46. See also the notary’s description of the use of the rack and water torture in the case against María González in Toledo in 1513, reproduced in Homza, The Spanish Inquisition, 56–57.

26. See, for example, Greenberg and Dratel, eds., The Torture Papers, 229.

27. See, for example, Gompert and Gordon, War by Other Means, 6 and following; and Sitaraman, The Counterinsurgent’s Constitution, 35–38.

28. However, I do not go as far as Marnia Lazreg who suggests, in her book Torture and the Twilight of Empire, that torture is the direct and necessary outcome of modern warfare theory or that it “could not be implemented successfully without its [torture’s] use.” Marnia Lazreg, Torture and the Twilight of Empire, 15; see also p. 3. Under certain variations of counterinsurgency theory, torture can be avoided and replaced by substitutes such as psychological methods or drone strikes. That does not, however, redeem counterinsurgency theory. It merely represents different styles of modern warfare.

29. Laleh Khalili, Time in the Shadows: Confinement in Counterinsurgencies (Stanford: Stanford University Press, 2013).

4. INDEFINITE DETENTION AND DRONE KILLINGS

1. Mohamedou Ould Slahi, Guantánamo Diary, ed. Larry Siems (New York: Back Bay Books, 2015), 29–30.

2. Ibid.

3. Ibid.

4. Slahi, Guantánamo Diary, 31–32.

5. The continuities in the treatment of detained suspects throughout the history of counterinsurgencies is analyzed in depth in Khalili, Time in the Shadows.

6. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998) 114.

7. Jenifer Fenton, “Freed Guantanamo Detainees: Where are they now?” Aljazeera, January 11, 2016, http://www.aljazeera.com/indepth/features/2016/01/released-guantanamo-bay-detainees-160110094618370.html; and Noah Rayman, Where Are All Those Freed Guantanamo Detainees Now?” Time, December 8, 2014, http://time.com/3624445/guantanamo-detainees-uruguay/.

8. Andrew Taylor, “Speaker: Legal Steps to Stop Obama from Closing Guantánamo,” US News & World Report, February 24, 2016, https://www.usnews.com/news/politics/articles/2016-02-24/speaker-legal-steps-to-stop-obama-from-closing-guantanamo.

9. Tom Kludt, “Gitmo Diary Cracks Amazon’s Top-Sellers List,” CNN: Media, January 21, 2015, http://money.cnn.com/2015/01/20/media/guantanamo-diary-mohamedou-ould-slahi-aclu/; “Guantánamo Diary,” Little, Brown and Company, accessed May 10, 2017, http://www.littlebrown.com/guantanamo.html; “Zero Dark Thirty,” Box Office Mojo, accessed May 10, 2017, http://www.boxofficemojo.com/movies/?id=binladen.htm. The film has grossed over $132,800,000 in box-office revenues, which, at an average movie ticket of $8.15 (the national average at the time) would mean more than sixteen million tickets sold.

10. Slavoj Žižek, “Zero Dark Thirty: Hollywood’s Gift to American Power,” Guardian, January 25, 2013, https://www.theguardian.com/commentisfree/2013/jan/25/zero-dark-thirty-normalises-torture-unjustifiable.

11. Chamayou, A Theory of the Drone, 46.

12. The Bureau of Investigative Journalism, “Drone Warfare,” accessed April 23, 2017, https://www.thebureauinvestigates.com/projects/drone-war.

13. Ken Dilanian, Courtney Kube, and William M. Arkin, “US Launches Airstrikes in Yemen,” NBC News, March 2, 2017, http://www.nbcnews.com/news/us-news/u-s-launches-air-strikes-yemen-n728186.

14. Murtaza Hussain, “US Has Only Acknowledged a Fifth of Its Lethal Strikes, New Study Finds,” The Intercept, June 13, 2017, https://theintercept.com/2017/06/13/drone-strikes-columbia-law-human-rights-yemen/; Alex Moorehead and Waleed Alhariri, “US Secrecy and Transparency in the Use of Lethal Force,” Just Security, June 13, 2017, https://www.justsecurity.org/42059/u-s-secrecy-transparency-lethal-force/.

15. Chamayou, A Theory of the Drone, 64.

16. David Kilcullen and Andrew McDonald Exum, “Death from Above, Outrage Down Below,” New York Times, May 16, 2009, http://www.nytimes.com/2009/05/17/opinion/17exum.html. Also cited in Chamayou, A Theory of the Drone, 65.

17. Chamayou, A Theory of the Drone, 62.

18. Ibid., 12.

19. Kilcullen and Exum, “Death from Above, Outrage Down Below.”

20. US Director of National Intelligence, “Summary of Information Regarding US Counterterrorism Strikes Outside Areas of Active Hostilities,” https://content.govdelivery.com/attachments/USODNI/2016/07/01/file_attachments/579487/DNI%2BRelease%2Bon%2BCT%2BStrikes%2BOutside%2BAreas%2Bof%2BActive%2BHostilities_FINAL.PDF; Office of the Press Secretary, “Executive Order on the US Policy on Pre & Post-Strike Measures,” The White House, Statements and Releases, July 1, 2016, https://www.whitehouse.gov/the-press-office/2016/07/01/fact-sheet-executive-order-us-policy-pre-post-strike-measures-address; and Charlie Savage and Scott Shane, “US Reveals Death Toll From Airstrikes Outside War Zones,” New York Times, July 1, 2016, http://www.nytimes.com/2016/07/02/world/us-reveals-death-toll-from-airstrikes-outside-of-war-zones.html.

21. Savage and Shane, “US Reveals Death Toll.”

22. Jack Serle, “Obama Drone Casualty Numbers a Fraction of Those Recorded by the Bureau Comments,” Bureau of Investigative Journalism, July 1, 2016, https://www.thebureauinvestigates.com/2016/07/01/obama-drone-casualty-numbers-fraction-recorded-bureau/; Savage and Shane, “US Reveals Death Toll” and Greg Miller, “Why the White House Claims on Drone Casualties Remain in Doubt,” Washington Post, July 1, 2016, https://www.washingtonpost.com/world/national-security/why-the-white-house-claims-on-drone-casualties-remain-in-doubt/.

23. “Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force,” Columbia Law School Human Rights Clinic and Sana’a Center for Strategic Studies, June 2017, https://www.outoftheshadowsreport.com/#new-page; and Hussain, “US Has Only Acknowledged a Fifth of Its Lethal Strikes.”

24. “Strikes in Afghanistan,” the Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/projects/drone-war/charts?show_casualties=1&show_injuries=1&show_strikes=1&location=afghanistan&from=2015-1-1&to=now.

25. Kilcullen and Exum, “Death from Above, Outrage Down Below.”

26. Henry Barnes, “‘The PTSD Stems from This Dirty Work’: New Film Documents Regretful Drone Pilots,” Guardian, February 15, 2016, https://www.theguardian.com/film/2016/feb/15/sonia-kennebeck-us-air-force-drone-war-home-roost. Hugh Gusterson examines the questions of proximity and distance in remote killings in his book, Drone: Remote Control Warfare (Cambridge, MA: MIT Press, 2016).

27. Eric Fair, “An Interrogator’s Nightmare,” Washington Post, February 9, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/02/08/AR2007020801680.html; and Eric Fair, Consequence: A Memoir (New York: Henry Holt and Company, 2016).

28. Eric Fair, “Owning Up to Torture,” New York Times, March 19, 2016, http://www.nytimes.com/2016/03/20/opinion/sunday/owning-up-to-torture.html.

29. For a few, see Eric Fair on Democracy Now, https://youtu.be/2oGh93UnxQg and https://youtu.be/VRQzf2QcidA, or the drone operators on Democracy Now, https://youtu.be/S6sqUJaxMdM and https://youtu.be/ArlvkgvfvgA.

30. Chamayou, A Theory of the Drone, 16, 15, and 177.

31. Theodor Adorno, Minima Moralia: Reflections on a Damaged Life (1944; repr. London: Verso, 2005); discussed also in Chamayou, A Theory of the Drone, 205.

32. See Chris Woods and Jack Serle, “Hostage Deaths Mean 38 Westerners Killed by US Drone Strikes, Bureau Investigation Reveals,” Bureau of Investigative Journalism, April 23, 2015, https://www.thebureauinvestigates.com/2015/04/23/hostage-deaths-mean-38-westerners-killed-us-drone-strikes/.

5. WINNING HEARTS AND MINDS

1. Trinquier, Modern Warfare, 105; and FM, 35.

2. Rosa Brooks, How Everything Became War and the Military Became Everything: Tales from the Pentagon (New York: Simon & Schuster, 2016), 344, 341, and 14.

3. See generally chap. 2 in Mathias, Galula in Algeria, which details what Galula actually did in Djebel Aïssa Mimoun, Algeria.

4. FM, 54–55.

5. FM, 98; and see also Sitaraman, The Counterinsurgent’s Constitution, 11 and 38. “Economically, counterinsurgents seek a stable environment that fosters reconstruction and development projects. Socially, counterinsurgents provide essential services, like water, sewage, and trash, and they represent local religious and cultural customs” (Sitaraman, 11).

6. Peter Baker, “Trump Chooses H. R. McMaster as National Security Adviser,” New York Times, February 20, 2017, https://www.nytimes.com/2017/02/20/us/politics/mcmaster-national-security-adviser-trump.html; see also FM, 375; and “Clear-Hold-Build in Tal Afar, 2005–2006: Office of the Assistant Secretary of Defense (Public Affairs),” news briefing with Col. H. R. McMaster, January 27, 2006.

7. FM, 183–184.

8. Galula, Counterinsurgency Warfare, 78.

9. Quoted in Broadwell, All In, 59 and 61–62.

10. Broadwell, All In, 62.

11. Matthieu Aikins, “The Bidding War,” New Yorker, March 7, 2016, http://www.newyorker.com/magazine/2016/03/07/the-man-who-made-millions-off-the-afghan-war; and Alissa J. Rubin, “Afghan Commander Issues Rules on Contractors,” New York Times, September 12, 2010, http://www.nytimes.com/2010/09/13/world/13petraeus.html.

12. Aikins, “The Bidding War.”

13. Ibid.

14. Ibid.

15. Ibid.; Broadwell, All In, 77–79; and Rubin, “Afghan Commander Issues Rules on Contractors.”

16. Chaliand, Guerrilla Strategies, 29; Marnia Lazreg, Torture and the Twilight of Empire, 58. In this regard, it is interesting to note that after his command in Algeria, David Galula spent several years working on radio counterpropaganda through the “Psychological Action Branch” of the French Ministry of Defense. See chap. 5 in Mathias, Galula in Algeria.

17. Kimberly Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan: We Were Never Here,” The Daily Beast, March 15, 2016, http://www.thedailybeast.com/articles/2016/03/15/obama-s-new-anti-isis-czar-wants-to-use-algorithms-to-target-jihadis.html.

18. For further commentary on Target’s ability to digitally identify newly pregnant women, see Harcourt, Exposed, 124, 194, and 246; and see also Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

19. Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

20. Ibid.

21. Ibid.

22. Ibid.

23. Galula, Pacification in Algeria, 102.

24. Dozier, “Anti-ISIS-Propaganda Czar’s Ninja War Plan.”

25. See Aussaresses, Services Spéciaux; and Aussaresses, The Battle of the Casbah.

26. General Massu, The Real Battle of Algiers, quoted in Kaufman, “The World: Film Studies.”

6. GOVERNING THROUGH TERROR

1. Trinquier, Modern Warfare, 113.

2. The idea of governing through terror that I develop in this chapter is indebted to Foucault’s writings on governmentality, as well as Ian Hacking’s, and to Jonathan Simon’s brilliant book about governing techniques in the war on crime, Governing Through Crime (New York: Oxford University Press, 2006).

3. Alleg, The Question, 38, 41, and 47.

4. Page duBois, Torture and Truth (New York: Routledge, 1991), 152 and 7.

5. Ibid., 64 and 65.

6. Ibid., 35.

7. Not that the Visigoths did not use torture. They too had rules and norms surrounding the use of torture—perhaps even more “responsibilizing” rules and norms, regulations that imposed greater responsibility on the person who was using torture. See Robert Burns’s summary of Visigothic regulations, of particular interest here, in Las Siete Partidas, ed. Robert I. Burns, trans. Samuel Parsons Scott (Philadelphia: University of Pennsylvania Press, 2000) (hereafter “LSP”), 1462; and see also Jesús R. Velasco, Dead Voice (Philadelphia: University of Pennsylvania Press, forthcoming).

8. LSP, 1459, 650, and 1459–1460. The liability warnings are particularly interesting. As Homza writes, “Inquisitors explicitly warned defendants that any injuries they suffered during torture would be their own fault” (Homza, The Spanish Inquisition, xxv). We read this in every case of torture. So, for instance, again in the case of Marina González tried in Toledo in 1494, the inquisitors “said that if during the torture some evil, damage, wound, or death occurred to her, it would be her fault and not theirs” (Homza, The Spanish Inquisition, 45). Or, in the case of María González in Toledo in 1513, the inquisitors emphasized that “if she should receive death, a wound, or the loss of some limb during the torture, it would be her own fault” (Homza, The Spanish Inquisition, 55). By contrast, responsibility seemed to fall on the inquisitor in the Partidas.

9. Homza, The Spanish Inquisition, xiii–xiv and 64–79.

10. Ibid., xiv; and LSP, 1462n.

11. Emmanuel Le Roy Ladurie, Montaillou: The Promised Land of Error (New York: Vintage Books, 1978), xiv and xv.

12. See, generally, Karen J. Greenberg, Rogue Justice: The Making of the Security State (New York: Crown Publishers, 2016), 174–182.

13. Bob v. State, 32 Ala. 560, 562 (1858).

14. Mose v. State, 36 Ala. 211, 226 (1860).

15. State v. Clarissa, 11 Ala. 57 (1847), see pp. 61 and 61–62.

16. Ibid., 62.

17. As the Alabama Supreme Court explained, the slaveholder had an “interest to prevent a conviction, the consequence of which would be, the certain loss of one half his value, and the possible loss of his entire value.” The State v. Marshall, 8 Ala. 302, 307 (1845).

18. The jailor, McGehee, told the slave, Bob, while he was detained in the county jail: “Bob you are a fool; you had better confess your guilt; everybody around here believes you are guilty; and you ought to know that it would be better for you to confess, and for your master to have your value in his pocket, than for you to have your neck broke, and he have no money for you.” Bob v. State, 32 Ala. 560, 562–563 (June 1858).

19. Flag of the Union, December 7, 1842.

20. See generally Bernard E. Harcourt, “Imagery and Adjudication in the Criminal Law: The Relationship Between Images of Criminal Defendants and Ideologies of Criminal Law in Southern Antebellum and Modern Appellate Decisions,” Brooklyn Law Review 61 (1995): 1206–214.

21. Feodor Dostoevsky, “The Grand Inquisitor,” trans. Helena Blavatsky (1881; repr. Project Gutenberg, 2005), https://www.gutenberg.org/files/8578/8578-h/8578-h.htm.

22. Ashley Parker and Maggie Haberman, “Donald Trump, After Difficult Stretch, Shows a Softer Side,” New York Times, April 20, 2016, http://www.nytimes.com/2016/04/21/us/politics/donald-trump-interview.html; Alex Myers, “Donald Trump Compares Winning Presidential Primaries to Winning Club Championships,” GolfDigest, March 6, 2016, http://www.golfdigest.com/story/donald-trump-compares-winning-presidential-primaries-to-winning-club-championships; and Ian Schwartz, “Trump: ‘We Will Have So Much Winning If I Get Elected That You May Get Bored with Winning,’” RealClearPolitics, September 9, 2015, http://www.realclearpolitics.com/video/2015/09/09/trump_we_will_have_so_much_winning_if_i_get_elected_that_you_may_get_bored_with_winning.html.

23. Richard C. Paddock, “Becoming Duterte: The Making of a Philippine Strongman,” New York Times, March 21, 2017, https://www.nytimes.com/2017/03/21/world/asia/rodrigo-duterte-philippines-president-strongman.html.

24. Ibid.

25. Alleg, The Question, 81–82.

26. Ibid., 82.

27. Marnia Lazreg, “Women: Between Torture and Military Feminism,” Torture and the Twilight of Empire, 145–169.

28. Alleg, The Question, 68 and 85.

29. Ibid., 93.

30. Ibid.

31. Jean-Paul Sartre, preface to The Question, by Henri Alleg, xxxi and xliii.

32. Alleg, The Question, 96.

33. Ibid. (emphasis added).

34. Sartre, preface to The Question, xliii.

35. Lazreg, Torture and the Twilight of Empire, 155.

36. Ibid., 268.

37. James Baldwin, “Here Be Dragons or Freaks and the American Ideal of Manhood” (1985), reprinted in Rudolph P. Byrd and Beverly Guy-Sheftall, eds., Traps: African American Men on Gender and Sexuality (Bloomington: Indiana University Press, 2001), 212.

38. Ibid., 208.

39. Jean-Paul Sartre, preface to The Wretched of the Earth, by Franz Fanon, trans. Richard Philcox (New York: Grove Press, 2004), 36.

40. Cf. Moustafa Bayoumi, This Muslim American Life: Dispatches from the War on Terror (New York: New York University Press, 2015), which traces the history of the racialization of Islam since the late nineteenth century in America.

41. Agamben, Homo Sacer, 114 and 154.

42. Ibid. 184–185 and 185.

43. Ibid., 8.

44. This is not to deny, in any way, the rich human lives that resist this bare life. While Agamben is surely right that the camp functions to dehumanize, it is important for us never to stop seeing and writing about the complexity of the lived experience and will to life in these situations. When we speak of “bare life,” we almost inhabit the worldview of the Nazi leadership or the prison warden. But the concept of “bare life” always does injustice to the humanity of the victim. That may be its function, though ours is to resist. As an ethical matter, it is urgent that we resist the nudity of bare life. In other words, it is essential never to treat life ever as mere existence and instead, to always seek to find, in that nudity, the complexity of life. See, e.g., Banu Bargu, Starve and Immolate: The Politics of Human Weapons (New York: Columbia University Press, 2014).

45. Adriana Cavarero, Horrorism: Naming Contemporary Violence (New York: Columbia University Press, 2009). With more time and space, it would of course be crucial to develop the contributions of, among others, Allen Feldman, Archives of the Insensible: Of War, Photopolitics, and Dead Memory (Chicago: University of Chicago Press, 2015); Achille Mbembe, “Necropolitics,” Public Culture 15 (2003): 11–40; Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge, MA: Harvard University Press, 1982); Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1987); and Alexander G. Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human (Durham, NC: Duke University Press, 2014), who have all contributed importantly to these debates.

46. See Michel Foucault, Théories et institutions pénales. Cours au Collège de France. 1971–1972 (Paris: Gallimard/Le Seuil, 2015).

47. Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy (New York: Pantheon Books, 2016).

48. Jean-Paul Sartre, Critique of Dialectical Reason, trans. Alan Sheridan-Smith (London: Verso, 1991), 43; see also Sartre, preface to The Wretched of the Earth; and Wolin, The Wind from the East.

49. Dostoevsky, “The Grand Inquisitor.”

PART III : THE DOMESTICATION OF COUNTERINSURGENCY

1. For background on Anwar al-Awlaki, see Scott Shane, “The Lessons of Anwar al-Awlaki,” New York Times, August 27, 2015, http://www.nytimes.com/2015/08/30/magazine/the-lessons-of-anwar-al-awlaki.html; Adam Taylor, “The US Keeps Killing Americans in Drone Strikes, Mostly by Accident,” Washington Post, April 23, 2015, https://www.washingtonpost.com/news/worldviews/wp/2015/04/23/the-u-s-keeps-killing-americans-in-drone-strikes-mostly-by-accident/; and Michael Boyle and Hina Shamsi, “Killing Americans Abroad: Is the Obama Administration Justified?”, Al Jazeera America, June 24, 2014, http://america.aljazeera.com/watch/shows/inside-story/articles/2014/6/24/drones-memo-releasewastheobamaadministrationjustified.html.

2. Memorandum from David J. Barron to the attorney general, US Department of Justice, July 16, 2010, https://www.aclu.org/sites/default/files/assets/2014-06-23_barron-memorandum.pdf; and Spencer Ackerman, “US Cited Controversial Law in Decision to Kill American Citizen by Drone,” Guardian, June 23, 2014, http://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-american-citizen-awlaki.

3. Jonathan Masters, “Targeted Killings,” Council of Foreign Relations, updated May 23, 2013, http://www.cfr.org/counterterrorism/targeted-killings/p9627. The ACLU filed two lawsuits challenging the drone killings of al-Awlaki. The first was dismissed because the federal district court held that the plaintiff lacked standing and the case raised political questions. The second was dismissed because the federal district court held that there was no implied right of action for the plaintiff to bring a Bivens claim. See Al Aulaqi v. Panetta, Center for Constitutional Rights, June 29, 2015, https://ccrjustice.org/home/what-we-do/our-cases/al-aulaqi-v-panetta; and “Al-Aulaqi v. Panetta—Constitutional Challenge to Killings of Three US Citizens,” ACLU, June 4, 2014, https://www.aclu.org/cases/al-aulaqi-v-panetta-constitutional-challenge-killing-three-us-citizens. The ACLU and the New York Times also filed suits to force the government to release documents containing the legal justifications for al-Awlaki’s killing, resulting in the release of the July 16, 2010, memorandum. See Devlin Barrett and Siobhan Gorman, “US Memo Outlines Rationale for Drone Strikes on Citizens,” Wall Street Journal, June 26, 2014, http://www.wsj.com/articles/u-s-can-kill-citizens-abroad-under-certain-circumstances-memo-says-1403542004. For reactions to rationale, see Ackerman, “US Cited Controversial Law”; and interview of David Sedney in Boyle and Shamsi, “Killing Americans Abroad: Is the Obama Administration Justified?,” Al Jazeera America, June 24, 2014, http://america.aljazeera.com/watch/shows/inside-story/articles/2014/6/24/drones-memo-releasewastheobamaadministrationjustified.html.

4. Masters, “Targeted Killings.”

5. As per the Bureau of Investigative Journalism on April 23, 2015, see Woods and Serle, “Hostage Deaths Mean”; and Adam Taylor, “The US Keeps Killing Americans.”

6. Adam Baron, “US Drone Strikes Came Despite Yemen’s Hopes to Limit Them,” April 24, 2014, http://www.mcclatchydc.com/news/nation-world/world/middle-east/article24766561.html; Taylor, “The US Keeps Killing Americans”; Craig Whitlock et al., “Obama Apologizes for Attack That Killed Two Hostages,” Washington Post, April 23, 2015, https://www.washingtonpost.com/world/national-security/us-operation-kills-al-qaeda-hostages-including-american/2015/04/23/8e9fcaba-e9bd-11e4-aae1-d642717d8afa_story.html; and Mark Mazzetti, “Killing of Americans Deepens Debate Over Use of Drone Strikes Abroad,” New York Times, April 23, 2015, http://www.nytimes.com/2015/04/24/world/asia/killing-of-americans-deepens-debate-over-proper-use-of-drone-strikes.html.

7. Sewell Chan and Kimiko de Freytas-Tamura, “Pentagon Says ‘Jihadi John’ Was Probably Killed in Airstrike,” New York Times, November 13, 2015, http://www.nytimes.com/2015/11/14/world/europe/jihadi-john-mohammed-emwazi-david-cameron-statement.html; Adam Goldman et al., “US Strike Believed to Have Killed ‘Jihadi John,’ Islamic State Executioner,” Washington Post, November 13, 2015, https://www.washingtonpost.com/world/national-security/us-drone-strike-targeted-jihadi-john-the-briton-linked-to-hostage-beheadings/2015/11/13/8d58595c-89df-11e5-be39-0034bb576eee_story.html; and Prime Minister David Cameron, as quoted in Chan and de Freytas-Tamura, “Pentagon Says.”

8. Nash Jenkins, “German Rapper Who Joined ISIS Killed in US Air Strike in Syria,” Time, October 30, 2015, http://time.com/4093945/denis-cuspert-deso-dogg-isis/; Christine Hauser, “Pentagon Says Deso Dogg, Ex-Rapper and ISIS Recruiter, Survived Airstrike After All,” New York Times, August 3, 2016, http://www.nytimes.com/2016/08/04/world/pentagon-says-isis-recruiter-survived-airstrike-in-2015-after-all.html; and Terrorist Designation of Denis Cuspert, US Department of State, February 9, 2015, https://www.state.gov/j/ct/rls/other/des/266538.htm.

9. See Woods and Serle, “Hostage Deaths Mean.”

7. COUNTERINSURGENCY COMES HOME

1. Sewell Chan, “Shootings in Dallas, Minnesota and Baton Rouge: What We Know,” New York Times, July 8, 2016, http://www.nytimes.com/2016/07/09/us/dallas-attacks-what-we-know-baton-rouge-minnesota.html; and Henry Fountain and Michael S. Schmidt, “‘Bomb Robot’ Takes Down Dallas Gunman, but Raises Enforcement Questions,” New York Times, July 8, 2016, http://www.nytimes.com/2016/07/09/science/dallas-bomb-robot.html.

2. Noah Feldman, “Crime Scenes and Weapons of War,” Bloomberg View, July 11, 2016, http://www.bloomberg.com/view/articles/2016-07-11/crime-scenes-and-weapons-of-war.

3. Ibid.

4. One can get a good sense of this by reading the contributions to Life During Wartime: Resisting Counterinsurgency, eds. Kristian Williams, Will Munger, and Lara Messersmith-Glavin (Oakland, CA: AK Press, 2013), which addresses the domestication of counterinsurgency.

5. Niraj Chokshi, “Militarized Police in Ferguson Unsettles Some; Pentagon Gives Cities Equipment,” Washington Post, August 14, 2014, https://www.washingtonpost.com/politics/militarized-police-in-ferguson-unsettles-some-pentagon-gives-cities-equipment/2014/08/14/4651f670-2401-11e4-86ca-6f03cbd15c1a_story.html.

6. Matt Apuzzo, “War Gear Flows to Police Departments,” New York Times, June 8, 2014, https://www.nytimes.com/2014/06/09/us/war-gear-flows-to-police-departments.html; “MRAPs And Bayonets: What We Know About The Pentagon’s 1033 Program,” NPR, September 2, 2014, www.npr.org/2014/09/02/342494225/mraps-and-bayonets-what-we-know-about-the-pentagons-1033-program; and Shane Bauer, “The Making of the Warrior Cop,” Mother Jones, October 2014, http://www.motherjones.com/politics/2014/10/swat-warrior-cops-police-militarization-urban-shield.

7. “Obama Administration Military Surplus Review,” Congressional Digest 94, no. 2 (February 2015): 4. MAS Ultra—School Edition, EBSCOhost, accessed May 12, 2017.

8. Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (New York: Public Affairs, 2013), 333.

9. Chokshi, “Militarized Police.”

10. Alex Horton, “In Iraq, I Raided Insurgents. In Virginia, the Police Raided Me,” Washington Post, July 24, 2015, https://www.washingtonpost.com/opinions/in-iraq-i-raided-insurgents-in-virginia-the-police-raided-me/2015/07/24/2e114e54-2b02-11e5-bd33-395c05608059_story.html.

11. See Urbandictionary.com, top definition of swatting.

12. Jason Fagone, “The Serial Swatter: Internet Trolls Have Learned to Exploit Our Over-Militarized Police,” New York Times, November 24, 2015, https://www.nytimes.com/2015/11/29/magazine/the-serial-swatter.html.

13. NPR, “North Dakota Legalizes Armed Police Drones,” August 27, 2015, http://www.npr.org/sections/thetwo-way/2015/08/27/435301160/north-dakota-legalizes-armed-police-drones; and Police Foundation, “New Publication—Community Policing & Unmanned Aircraft Systems (UAS): Guidelines to Enhance Community Trust,” https://www.policefoundation.org/new-publication-community-policing-unmanned-aircraft-systems-uas-guidelines-to-enhance-community-trust/.

14. Redditt Hudson, “I’m a Black Ex-Cop, and This Is the Real Truth About Race and Policing,” Vox, July 7, 2016, http://www.vox.com/2015/5/28/8661977/race-police-officer.

15. Jack Maple and Chris Mitchell, The Crime Fighter: Putting the Bad Guys Out of Business (New York: Doubleday, 1999), 31, 7.

16. J. Edgar Hoover memo, August 25, 1967, quoted in Bloom and Martin, Black Against Empire, 201. Although the “COIN” in the neologism COINTELPRO was not literally intended to mean “counterinsurgency,” the family resemblance was striking. For a discussion of some of the similarities, see Walidah Imarisha and Kristian Williams, “COINTELPRO TO COIN: Claude Marks Interviewed,” in Life During Wartime, 27–43.

17. Hoover expressly viewed the Panthers as insurgents. He perceived them through the lens of the armed anticolonial revolutionary movements. And in fact, some members of the Panthers were in fact Maoist and did support revolutionary liberation movements in Africa and Asia. When Eldridge Cleaver fled the United States to Algeria in 1968 and inaugurated the international section of the Black Panther Party, Cleaver would align the international section with the liberation movements in Algeria, North Korea, North Vietnam, and China. But what matters here is not so much their politics, as the fact that Hoover perceived the Panthers as insurgents—identifying them with the liberation movements around the globe. In fact, Hoover viewed the Panthers as, in his own words, “the greatest threat to the internal security of the country.” Bloom and Martin, Black Against Empire, 3; and Wolin, The Wind from the East, 14.

18. J. Edgar Hoover memo, March 1968, quoted in Bloom and Martin, Black Against Empire, 202. It was particularly important to the FBI to discredit the Panthers, given the popularity of the Panthers’ social programs, such as the Free Breakfast for Children program—programs intended to serve the communities and inspired, in part, by Maoist ideals and strategies.

19. Frank Trippett, “It Looks Just Like a War Zone,” Time, June 24, 2001, http://content.time.com/time/magazine/article/0,9171,141842,00.html.

20. Charles F. Sabel and William H. Simon, “The Duty of Responsible Administration and the Problem of Police Accountability” (working paper in author’s possession, September 22, 2015).

21. Bernard E. Harcourt, Illusion of Order: The False Promise of Broken-Windows Policing (Boston: Harvard University Press, 2001).

22. Ibid.; Sabel and Simon, “The Duty,” 27–28.

23. Maple and Mitchell, The Crime Fighter, 31.

24. Sabel and Simon, “The Duty,” 28.

25. For all these references, see Maple and Mitchell, The Crime Fighter, 31, 79, 135–138, 144, 178, 222, and 242.

26. Ibid., 31.

27. Sabel and Simon, “The Duty,” 33, 36, and 40. Problem-oriented policing is closely associated with the Wisconsin law professor Herman Goldstein, who spelled out the principles of his approach in a book, Problem-Oriented Policing (New York: McGraw Hill, 1990).

28. Sabel and Simon, “The Duty,” 41.

29. Heather Mac Donald, “The New Nationwide Crime Wave,” Wall Street Journal, May 29, 2015, http://www.wsj.com/articles/the-new-nationwide-crime-wave-1432938425.

30. Guardian, https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database; and Washington Post, https://www.washingtonpost.com/graphics/national/police-shootings-2016/.

31. Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016).

32. National Weed and Seed Program, US Department of Justice, https://www.ojjdp.gov/pubs/gun_violence/sect08-e.html.

8. SURVEILLING AMERICANS

1. FM, 79.

2. Galula, Pacification in Algeria, 72.

3. Apuzzo and Goldman, “With CIA Help”; “Highlights of AP’s Pulitzer Prize–winning probe into NYPD intelligence operations,” Associated Press (with links to stories and documents), https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations; and Ryan Devereaux, “Judge Who Approved Expanding NYPD Surveillance of Muslims Now Wants More Oversight,” The Intercept, November 7, 2016, https://theintercept.com/2016/11/07/judge-who-approved-expanding-nypd-surveillance-of-muslims-now-wants-more-oversight.

4. “Target of Surveillance,” https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

5. “Nov. 22, 2006 NYPD Weekly MSA Report,” https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

6. “April 25, 2008 Deputy Commissioner’s Briefing,” https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

7. “April 25, 2008 Deputy Commissioner’s Briefing,” https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

8. “Sept. 25, 2007 Newark, N.J. Demographics Report,” 48 and 50, https://www.ap.org/about/awards-and-recognition/highlights-of-aps-pulitzer-prize-winning-probe-into-nypd-intelligence-operations.

9. Apuzzo and Goldman, “With CIA Help.”

10. DOI’s Inspector General for NYPD, “An Investigation.”

11. See Handschu v. NYPD, case no. 1:71-cv-02203-CSH-SCS, “Ruling on Proposed Settlement Agreement,” document 465 filed October 28, 2016 (opinion tracing history of Handschu and Raza litigation), https://www.aclu.org/legal-document/raza-v-new-york-handschu-court-ruling-proposed-revisions-handschu-guidelines; and “Raza v. City of New York—Legal Challenge to NYPD Muslim Surveillance Program,” ACLU, March 6, 2017, https://www.aclu.org/cases/raza-v-city-new-york-legal-challenge-nypd-muslim-surveillance-program.

12. See Mark Hensch, “Trump Won’t Rule Out Database, Special ID for Muslims in US,” The Hill, November 19, 2015, http://thehill.com/blogs/ballot-box/presidential-races/260727-trump-wont-rule-out-database-special-id-for-muslims; and Dean Obeidallah, “Donald Trump’s Horrifying Words About Muslims,” CNN, November 21, 2015, http://www.cnn.com/2015/11/20/opinions/obeidallah-trump-anti-muslim/.

13. Hensch, “Trump Won’t Rule.”

14. “The US Attorney’s Letter,” CNN, November 27, 2001, http://www.cnn.com/2001/US/11/27/inv.questioning.letters/; see generally “Hundreds in Michigan Asked to Submit to ‘Terror Questioning,’” CNN, November 28, 2001, http://edition.cnn.com/2001/US/11/27/inv.michigan.interviews/index.html; Mitch Frank, “Feds and Cops at Odds over Terror Investigation,” Time, November 29, 2001, http://content.time.com/time/nation/article/0,8599,186383,00.html; and Jodi Wilgorennov, “A Nation Challenged: The Interviews; Michigan ‘Invites’ Men From Mideast to Be Interviewed,” New York Times, November 27, 2001, http://www.nytimes.com/2001/11/27/us/nation-challenged-interviews-michigan-invites-men-mideast-be-interviewed.html.

15. Julia Angwin et al., “AT&T Helped US Spy on Internet on a Vast Scale,” New York Times, August 15, 2015, http://www.nytimes.com/2015/08/16/us/politics/att-helped-nsa-spy-on-an-array-of-internet-traffic.html.

16. Statement of President Obama on the USA FREEDOM Act, https://www.whitehouse.gov/the-press-office/2015/06/02/statement-president-usa-freedom-act.

17. Alan Yuhas, “NSA Reform: USA FREEDOMAct Passes First Surveillance Reform in Decade—As It Happened,” Guardian, June 2, 2015, http://www.theguardian.com/us-news/live/2015/jun/02/senate-nsa-surveillance-usa-freedom-act-congress-live.

18. Mark Hosenball and Patricia Zengerle, “US Lawmakers Warn Proposed Changes Could Doom Spy Bill,” Reuters, June 1, 2015, http://www.reuters.com/article/2015/06/02/usa-security-surveillance-congress-idUSL1N0YN23X20150602.

19. The President’s Review Group on Intelligence and Communications Technologies et al., The NSA Report: Liberty and Security in a Changing World (Princeton, NJ: Princeton University Press, 2014), 118 and 119n118, report available at https://obamawhitehouse.archives.gov/blog/2013/12/18/liberty-and-security-changing-world.

20. Quoted in David Cole, “Can the NSA Be Controlled?,” New York Review of Books, June 19, 2014, 16.

9. TARGETING AMERICANS

1. Thomas C. Greene, “Database Snafu puts US Senator on Terror Watch List,” The Register, August 19, 2004, http://www.theregister.co.uk/2004/08/19/senator_on_terror_watch; Sara Kehaulani Goo, “Faulty ‘No-Fly’ System Detailed,” Washington Post, October 9, 2004, http://www.washingtonpost.com/wp-dyn/articles/A18735-2004Oct8.html; and “In First, Government Officially Tells ACLU Clients Their No Fly List Status,” ACLU, October 10, 2014, https://www.aclu.org/news/first-government-officially-tells-aclu-clients-their-no-fly-list-status?redirect=national-security/first-government-officially-tells-aclu-clients-their-no-fly-list-status.

2. Jeremy Scahill and Ryan Devereaux, “The Secret Government Rulebook For Labeling You a Terrorist,” The Intercept, July 23, 2014, https://theintercept.com/2014/07/23/blacklisted/; Steve Kroft, “Unlikely Terrorists On No Fly List,” CBS, October 8, 2006, http://www.cbsnews.com/news/unlikely-terrorists-on-no-fly-list/; US Department of Justice Office of the Inspector General Audit Division, “Follow-up Audit of the Terrorist Screening Center,” September 2007, https://oig.justice.gov/reports/FBI/a0741/final.pdf; Jamie Tarabay, “No-Fly List: FBI Says It’s Smaller Than You Think,” NPR, Morning Edition, January 26, 2011, http://www.npr.org/2011/01/26/133187841/the-no-fly-list-fbi-says-its-smaller-than-you-think; Jeremy Scahill and Ryan Devereaux, “Barack Obama’s Secret Terrorist-Tracking System, by the Numbers,” The Intercept, August 5, 2014, https://theintercept.com/2014/08/05/watch-commander/; Michelle Ye Hee Lee, “Democrats’ Misleading Claims about Closing the No-Fly List ‘Loophole,’” Washington Post, December 11, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/12/11/democrats-misleading-claims-about-closing-the-no-fly-list-loophole/; and Stephen Dinan, “FBI No-Fly List Revealed: 81,000 Names, but Fewer than 1,000 Are Americans,” The Washington Times, June 20, 2016, http://www.washingtontimes.com/news/2016/jun/20/fbi-no-fly-list-revealed-81k-names-fewer-1k-us/. In addition, over six thousand United States citizens or permanent residents are on a separate Terrorist Watch List.

3. Jennifer Gonnerman, “Fighting for the Immigrants of Little Pakistan,” New Yorker, June 25, 2017, http://www.newyorker.com/magazine/2017/06/26/fighting-for-the-immigrants-of-little-pakistan; Ziglar v. Abbasi, 582 U.S. __ (United States Supreme Court, June 19, 2017), https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf (detailing allegations by 84 detainees of solitary confinement, strip searches, sleep deprivation, and physical and verbal abuse, including wall slamming, broken bones, sexual humiliation, and other physical and mental abuse, see slip opinion at p.4).

4. Gonnerman, “Fighting for the Immigrants of Little Pakistan”; Maia Jachimowicz and Ramah McKay, “‘Special Registration’ Program,” Migration Information Source, April 1, 2003, http://www.migrationpolicy.org/article/special-registration-program#2a.

5. Chicago attorney Thomas Durkin has been litigating this issue strenuously in the Daoud case. See generally U.S. v. Daoud Seventh Circuit Opinion, 755 F.3d 479 (7th Cir. 2014); Patrick Toomey and Brett Max Kaufman, “The Notice Paradox: Secret Surveillance, Criminal Defendants, & the Right to Notice,” Santa Clara Law Review 54 (2015): 844–900; and William C. Banks, “Programmatic Surveillance and FISA: Needles in Haystacks,” Texas Law Review 88 (2010): 1633–667.

6. Christopher Ingraham, “Republican Lawmakers Introduce Bills to Curb Protesting in at Least 18 States,” Washington Post, February 24, 2017, https://www.washingtonpost.com/news/wonk/wp/2017/02/24/republican-lawmakers-introduce-bills-to-curb-protesting-in-at-least-17-states/.

7. Evan Osnos, “The Imam’s Curse: A Family Accused of Financing Terrorists,” New Yorker, September 21, 2015, 50.

8. Ibid., 52.

9. Ibid., 52 and 56.

10. Ibid., 52.

11. Ibid., 53 and 56.

12. Ibid., 54.

13. Ibid., 55.

14. Ibid., 58 and 56.

15. Manny Fernandez and Christine Hausersept, “Handcuffed for Making Clock, Ahmed Mohamed, 14, Wins Time With Obama,” New York Times, September 16, 2015, http://www.nytimes.com/2015/09/17/us/texas-student-is-under-police-investigation-for-building-a-clock.html; Matthew Teague, “Ahmed Mohamed Is Tired, Excited to Meet Obama—and Wants His Clock Back,” Guardian, September 17, 2015, http://www.theguardian.com/us-news/2015/sep/17/ahmed-mohamed-is-tired-excited-to-meet-obama-and-wants-his-clock-back; Sebastian Murdock, “Police Knew Ahmed Didn’t Have A Bomb, Arrested the Teen Anyway,” Huffington Post, September 18, 2015, http://www.huffingtonpost.com/entry/ahmed-mohamed-police-not-bomb_55fc4510e4b08820d9187013; and Joanna Walters, “Texas Teen Arrested Over Homemade Clock Gets It Back Days Before Leaving US in New York,” Guardian, October 24, 2015, http://www.theguardian.com/us-news/2015/oct/24/texas-teen-ahmed-mohamed-gets-homemade-clock-back.

16. Lauren Gambino, “Ahmed Mohamed Meets Sudanese President with Whom Father Had Rivalry,” Guardian, October 16, 2015, http://www.theguardian.com/world/2015/oct/16/ahmed-mohamed-sudan-president-omar-al-bashir-texas-clock.

17. MSNBC Live interview, available at Murdock, “Police Knew Ahmed.”

18. Jeffrey Fagan and Bernard Harcourt, “Fact Sheet in Richmond County (Staten Island) Grand Jury in Eric Garner Homicide,” http://www.law.columbia.edu/social-justice/forum-on-police-accountability/facts/faqs-eric-garner; Sandhya Somashekhar and Kimbriell Kelly, “Was Michael Brown Surrendering or Advancing to Attack Officer Darren Wilson?,” Washington Post, November 29, 2014, https://www.washingtonpost.com/politics/2014/11/29/b99ef7a8-75d3-11e4-a755-e32227229e7b_story.html; Department of Justice, Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, March 4, 2015, https://www.justice.gov/opa/pr/justice-department-announces-findings-two-civil-rights-investigations-ferguson-missouri; Jeremy Gorner et al., “Most of Chicago Police Force Ordered into Uniform As City Prepares for Video Release,” Chicago Tribune, November 24, 2015, http://www.chicagotribune.com/news/local/breaking/ct-chicago-police-laquan-mcdonald-shooting-video-release-20151123-story.html; and Dan Good, “Chicago Police Officer Jason Van Dyke Emptied His Pistol and Reloaded As Teen Laquan McDonald Lay on Ground During Barrage; Cop Charged with Murder for Firing 16 times,” New York Daily News, November 24, 2015, http://www.nydailynews.com/news/national/shot-laquan-mcdonald-emotionless-court-arrival-article-1.2445077.

19. Chris Hayes, A Colony in a Nation (New York: W.W. Norton & Company, 2017), 67.

20. Niraj Chokshi, “Militarized Police in Ferguson Unsettles Some” (see especially video “What Weapons Are Police Using in Ferguson?”: https://www.washingtonpost.com/politics/militarized-police-in-ferguson-unsettles-some-pentagon-gives-cities-equipment/2014/08/14/4651f670-2401-11e4-86ca-6f03cbd15c1a_story.html?utm_term=.985b860733da); Paul D. Shinkman, “Ferguson and the Militarization of Police: Camo-Clad Snipers Trained on Michael Brown Protesters Elicits Concern from Americans, Including Iraq, Afghanistan Vets,” US News & World Report, August 14, 2014, https://www.usnews.com/news/articles/2014/08/14/ferguson-and-the-shocking-nature-of-us-police-militarization; and for descriptions of these weapons and their dissemination in police forces around the country, see Apuzzo, “War Gear Flows to Police Departments.”

21. Hayes, A Colony in a Nation, 69.

22. Ibid., 83.

23. Ibid., 31 and 76.

24. Section 3(c) of Executive Order 13769 states that “the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States,” and it therefore “suspend[s] entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order.” The seven countries that fit the criteria in 8 U.S.C. § 1187(a)(12) include Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. See also State of Washington v. Donald J. Trump et al., No. 17-35105, Order on Motion for Stay of an Order (9th Cir. February 9, 2017), slip opinion at 3-5.

25. Jennifer Gonnerman, “A Syrian Doctor with a Visa Is Suing the Trump Administration,” New Yorker, February 1, 2017, http://www.newyorker.com/news/news-desk/a-syrian-doctor-with-a-visa-is-suing-the-trump-administration. Thomas Durkin, Robin Waters, and I represented Dr. Al Homssi. After filing a federal lawsuit, Dr. Al Homssi was allowed to reenter the country. See Jennifer Gonnerman, “A Syrian Doctor Returns to Illinois,” New Yorker, February 2, 2017, http://www.newyorker.com/news/news-desk/a-syrian-doctor-returns-to-illinois.

26. Glenn Kessler, “The Number of People Affected by Trump’s Travel Ban: About 90,000,” Washington Post, January 30, 2017, https://www.washingtonpost.com/news/fact-checker/wp/2017/01/30/the-number-of-people-affected-by-trumps-travel-ban-about-90000/?utm_term=.a5924c5718b4.

27. “Donald J. Trump Statement on Preventing Muslim Immigration,” December 7, 2015, formerly online at https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration; and Christine Wang, “Trump Website Takes Down Muslim Ban Statement After Reporter Grills Spicer in Briefing,” CNBC, May 8, 2017, http://www.cnbc.com/2017/05/08/trump-website-takes-down-muslim-ban-statement-after-reporter-grills-spicer-in-briefing.html.

28. Exhibits 2 and 3 to the complaint filed by the State of Washington in State of Washington v. Donald Trump et al., Civ. Action # 2:17-cv-00141, Complaint for Declaratory and Injunctive Relief filed on January 30, 2017; and Elina Saxena, “Highlights from the 6th GOP Presidential Debate,” Lawfare, January 15, 2016, https://www.lawfareblog.com/highlights-6th-gop-presidential-debate.

29. Haeyoun Park, “Millions Could Be Blocked From Entering the US Depending on How Trump Would Enforce a Ban on Muslim Immigration,” New York Times, December 22, 2016, https://www.nytimes.com/interactive/2016/07/22/us/politics/trump-immigration-ban-how-could-it-work.html; Greg Sargent, “Is This a ‘Muslim Ban’? Look at the History—and at Trump’s Own Words,” Washington Post, January 31, 2017, https://www.washingtonpost.com/blogs/plum-line/wp/2017/01/31/is-this-a-muslim-ban-look-at-the-history-and-at-trumps-own-words; Exhibit 4 to complaint filed by the State of Washington in State of Washington v. Donald Trump et al., Civ. Action # 2:17-cv-00141.

30. See Exhibit 5 to complaint filed by the State of Washington in State of Washington v. Donald Trump et al., Civ. Action # 2:17-cv-00141, video at https://www.c-span.org/video/?4139771/donald-trump-delivers-foreign-policy-address, remarks at 50:46.

31. Tim Brown, “President Trump: We’re Going to Help Persecuted Christians,” Washington Standard, January 28, 2017, http://thewashingtonstandard.com/president-trump-going-help-persecuted-christians/.

32. See complaint at https://www.cairflorida.org/newsroom/press-releases/769-cair-complaint-for-injunctive-and-declaratory-relief-and-jury-demand-challenging-trump-s-executive-orders.html.

33. Mark Berman, “Donald Trump Says Muslims Should Report Suspicious Activity. The FBI Says They Already Do,” Washington Post, October 9, 2016, https://www.washingtonpost.com/politics/2016/live-updates/general-election/real-time-fact-checking-and-analysis-of-the-2nd-2016-presidential-debate/donald-trump-says-muslims-should-report-suspicious-activity-the-fbi-says-they-already-do/?utm_term=.bc6266442833; Mark Hensch, “Trump Won’t Rule Out Database, Special ID for Muslims in US,” The Hill, November 19, 2015, http://thehill.com/blogs/ballot-box/presidential-races/260727-trump-wont-rule-out-database-special-id-for-muslims; and Dean Obeidallah, “Donald Trump’s Horrifying Words About Muslims,” CNN, November 21, 2015, http://www.cnn.com/2015/11/20/opinions/obeidallah-trump-anti-muslim/.

34. Trump v. Hawai’i, 582 U.S. __, Order in Pending Case No. 16-1540 (US July 19, 2017), https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf.

35. Chamayou discusses this very astutely from pages 67 to 72 of his book A Theory of the Drone. See also Sitaraman, The Counterinsurgent’s Constitution, 32–34.

36. Chamayou, A Theory of the Drone, 68.

37. Ibid.

10. DISTRACTING AMERICANS

1. Andrew J. Bacevich, “He Told Us to Go Shopping. Now the Bill Is Due,” Washington Post, October 5, 2008, http://www.washingtonpost.com/wp-dyn/content/article/2008/10/03/AR2008100301977.html.

2. “President Bush’s News Conference,” New York Times, December 20, 2006, http://www.nytimes.com/2006/12/20/washington/20text-bush.html.

3. Andrew Sullivan, “I Used to Be a Human Being,” New York magazine, September 18, 2016, http://nymag.com/selectall/2016/09/andrew-sullivan-technology-almost-killed-me.html.

4. Evgeny Morozov, The Net Delusion: The Dark Side of Internet Freedom (New York: PublicAffairs, 2012).

5. Joseph Lawless has written a remarkable text on the dating application Grindr in relation to questions of torture and confession. See Joseph Lawless, “The Viral Inquisition of the HIV-Positive Body: Theorizing the Technologies of Torture and Confession on Grindr,” http://columbia.academia.edu/JosephLawless.

6. Sullivan, “I Used to Be a Human Being.”

7. Ibid.; Sally Andrews et al., “Beyond Self-Report: Tools to Compare Estimated and Real-World Smartphone Use,” PLOS ONE, October 28, 2015, https://doi.org/10.1371/journal.pone.0139004; and Carolyn Gregoire, “You Probably Use Your Smartphone Way More Than You Think. Many Young Adults Spend a Third of Their Waking Lives on Their Device,” Huffington Post, November 2, 2015, http://www.huffingtonpost.com/entry/smartphone-usage-estimates_us_5637687de4b063179912dc96.

8. Bernard E. Harcourt, “The Invisibility of the Prison in Democratic Theory: A Problem of ‘Virtual Democracy,’” The Good Society 23, no. 1 (2014): 6–16; and Harcourt, Exposed, 253–261.

9. Stephen Battaglio, “First Clinton-Trump Matchup Breaks Presidential Debate Record with 84 Million TV Viewers,” Los Angeles Times, September 27, 2016, http://www.latimes.com/entertainment/envelope/cotown/la-et-ct-debate-ratings-20160927-snap-story.html.

10. Van Jones, “Trump: The Social Media President?,” CNN, October 26, 2015, http://www.cnn.com/2015/10/26/opinions/jones-trump-social-media/.

11. Nick Gass, “Trump Wins Night on Search and Social,” Politico, January 29, 2016, http://www.politico.com/blogs/live-from-des-moines/2016/01/donald-trump-social-search-engine-218391#ixzz41Zf7yD2d.

12. Kimberly Alters, “Donald Trump’s Social Media Strategy? ‘Be Associated with Interesting Quotes,’” The Week, February 28, 2016, http://theweek.com/speedreads/609090/donald-trumps-social-media-strategy-associated-interesting-quotes.

13. Van Jones, “Trump: The Social Media President?”

14. Taylor Weatherby, “‘Damn Daniel’ Star Recreates His Viral Video with Ellen DeGeneres—Watch,” Hollywood Life, February 23, 2016, http://hollywoodlife.com/2016/02/23/damn-daniel-ellen-degeneres-interview-viral-video/.

15. “Damn Daniel” official video, https://youtu.be/tvk89PQHDIM.

16. Taylor Weatherby, “‘Damn Daniel’: Rappers Create Epic Song After Video Goes Viral—Listen,” Hollywood Life, February 21, 2016, http://hollywoodlife.com/2016/02/21/damn-daniel-song-rap-viral-video-listen/; and “Damn Daniel! RAP SONG! Little Feat. Teej & LeBlanc (ORIGINAL),” https://www.youtube.com/watch?v=CjlUVvGGE5A.

17. “Suhmeduh—Damn Daniel Trap Remix (Official),” https://www.youtube.com/watch?v=gP2ejq9Qp6o#t=43.

18. Alyssa Montemurro, “Justin Bieber & 6 Other Celebs Rocking the White Vans Like ‘Damn, Daniel,’” Hollywood Life, February 26, 2016, http://hollywoodlife.com/2016/02/26/celebrities-wearing-white-vans-damn-daniel-shoes-pics/.

19. Katie Rogers, “We Should Probably Have a Conversation About ‘Damn, Daniel,’” New York Times, February 25, 2016, http://www.nytimes.com/2016/02/26/style/damn-daniel-video-vans.html.

20. Beth Shilliday, “Damn Daniel Petrified He Might Get ‘Swatted’ Like Joshua Holz After Newfound Fame,” Hollywood Life, February 26, 2016, http://hollywoodlife.com/2016/02/26/damn-daniel-swatting-viral-video-teen-afraid/.

21. “Damn Daniel! RAP SONG! Little Feat. Teej & LeBlanc (ORIGINAL).”

22. Trinquier, Modern Warfare, 24 and 25.

23. Paret, French Revolutionary Warfare, 5.

24. Paret and Shy, Guerrillas in the 1960’s, 19.

25. Greenberg and Dratel, eds., The Torture Papers, 134 (Memo 11, dated February 7, 2002).

11. THE COUNTERREVOLUTION IS BORN

1. It is The Counterrevolution, and not the revolution, this time around, that seems to have been “inwardly working ever forward,” to borrow Hegel’s words; and, defying Marx’s prediction, it is the advent of The Counterrevolution that might prompt us to respond, this time perplexedly, “Well grubbed, old mole!” History has perhaps reversed itself, or we are one step closer to the next stage—or, as I suggest in conclusion, we face an endless struggle against recurring forms of tyranny. G.W.F. Hegel, Lectures on the History of Philosophy vol. 3, trans. E. S. Haldane and Frances H. Simson (New York: The Humanities Press, 1974), 547; Karl Marx, The Eighteenth Brumaire of Louis Bonaparte, in The Marx-Engels Reader, 2nd ed., ed. Robert C. Tucker (New York: W.W. Norton & Company, 1978), 606; cf. William Shakespeare, Hamlet, ed. Sylvan Barnet, 2nd rev. ed. (New York: Signet Classics, 1998), act 1, scene 5, p. 33.

2. Sharon Lafraniere, Sarah Cohen, and Richard A. Oppel Jr., “How Often Do Mass Shootings Occur? On Average, Every Day, Records Show,” New York Times, December 2, 2015, https://www.nytimes.com/2015/12/03/us/how-often-do-mass-shootings-occur-on-average-every-day-records-show.html; Sharon Lafraniere, Daniela Porat, and Agustin Armendariz, “A Drumbeat of Multiple Shootings, but America Isn’t Listening,” New York Times, May 22, 2016, https://www.nytimes.com/2016/05/23/us/americas-overlooked-gun-violence.html.

3. Richard Stengel, “Why Saying ‘Radical Islamic Terrorism’ Isn’t Enough,” New York Times, February 13, 2017, https://www.nytimes.com/2017/02/13/opinion/why-saying-radical-islamic-terrorism-isnt-enough.html.

4. Tim Arango, “Iran Dominates in Iraq After US ‘Handed the Country Over,’” New York Times, July 15, 2017, https://www.nytimes.com/2017/07/15/world/middleeast/iran-iraq-iranian-power.html; David Leigh, “Iraq War Logs Reveal 15,000 Previously Unlisted Civilian Deaths—Leaked Pentagon Files Contain Records of More than 100,000 Fatalities Including 66,000 Civilians,” Guardian, October 22, 2010, https://www.theguardian.com/world/2010/oct/22/true-civilian-body-count-iraq; and Gilbert Burnham et. al, “Mortality After the 2003 Invasion of Iraq: A Cross-sectional Cluster Sample Survey,” The Lancet, October 11, 2006, https://web.archive.org/web/20150907130701/http://brusselstribunal.org/pdf/lancet111006.pdf.

5. They even create domestic terrorists through aggressive sting operations that invent and make possible plots that would never have arose; as the federal judge in the “Newburgh Four” case writes, a case involving four Muslim men in upstate New York, the FBI “came up with the crime, provided the means, and removed all relevant obstacles,” and thereby entrapped someone “whose buffoonery is positively Shakespearean in scope.” David K. Shipler, “Terrorist Plots, Hatched by the F.B.I.,” New York Times, April 28, 2012, http://www.nytimes.com/2012/04/29/opinion/sunday/terrorist-plots-helped-along-by-the-fbi.html; and Human Rights Watch and Columbia Law School’s Human Rights Institute, “Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions,” July 21, 2014, https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-us-terrorism-prosecutions.

6. Stengel, “Why Saying ‘Radical Islamic Terrorism’ Isn’t Enough.”

7. See FM, xv–xvi; and Broadwell, All In, 351. As Paula Broadwell writes in her official biography of Petraeus, “Petraeus and Mattis teamed up to draft the new Counterinsurgency Field Manual in 2006.” On the social network of soldier-scholars, see Laleh Khalili, “The New (and Old) Classics of Counterinsurgency,” Middle East Report 255 (2010), http://www.merip.org/mer/mer255/khalili.html.

8. Peter Baker, “Trump Chooses H. R. McMaster as National Security Adviser,” New York Times, February 20, 2017, https://www.nytimes.com/2017/02/20/us/politics/mcmaster-national-security-adviser-trump.html.

9. “H. R. McMaster: 5 Fast Facts You Need to Know,” Heavy, February 20, 2017, http://heavy.com/news/2017/02/h-r-mcmaster-donald-trump-national-security-adviser-wife-career-bio-age-who-is-books-flynn/.

10. “President Trump’s Taxpayer First Budget,” The White House, https://www.whitehouse.gov/taxpayers-first; Binyamin Appelbaum and Alan Rappeport, “Trump’s First Budget Works Only if Wishes Come True,” New York Times, May 22, 2017, https://www.nytimes.com/2017/05/22/us/politics/budget-spending-federal-deficit.html; Gregor Aisch and Alicia Parlapiano, “How Trump’s Budget Would Affect Every Part of Government,” New York Times, May 23, 2017, https://www.nytimes.com/interactive/2017/05/23/us/politics/trump-budget-details.html?q=refugee%20programs; Erica L. Greenmay, “Trump’s Budget, Breaking Tradition, Seeks Cuts to Service Programs,” New York Times, May 25, 2017, https://www.nytimes.com/2017/05/25/us/politics/trump-budget-americorps-peace-corps-service.html; and Zachary Cohen, “Trump Proposes $54 Billion Defense Spending Hike,” CNN, March 16, 2017, http://www.cnn.com/2017/03/16/politics/donald-trump-defense-budget-blueprint/index.html.

11. Arlette Saenz, “President Trump tells ABC News’ David Muir He ‘Absolutely’ Thinks Waterboarding Works,” ABC News, January 25, 2017, http://abcnews.go.com/Politics/president-trump-tells-abc-news-david-muir-absolutely/story?id=45045055; Republican presidential debate, ABC News, https://www.youtube.com/watch?v=Upnc_y1cKEk; Charlie Atkin, “Donald Trump Quotes: The 10 Scariest Things the Presumptive Republican Nominee Has Ever Said,” Independent, May 6, 2016, http://www.independent.co.uk/us/donald-trump-quotes-the-10-scariest-things-the-presumptive-republican-nominee-has-ever-said-a7015236.html; and Charlie Savage, “Obama Policies Give Successor a Path to Vast Security Powers,” New York Times, November 14, 2016, A1, https://www.nytimes.com/2016/11/14/us/politics/harsher-security-tactics-obama-left-door-ajar-and-donald-trump-is-knocking.html.

12. Donald J. Trump, “Flashback: I Will Do Whatever It Takes, Trump Says,” USA Today, February 15, 2016, http://www.usatoday.com/story/opinion/2016/02/15/donald-trump-torture-enhanced-interrogation-techniques-editorials-debates/80418458/.

13. Berman, “Donald Trump Says Muslims,”; “Donald Trump’s Muslim Ban Is Back Up on His Website,” AOL News, November 11, 2016, https://www.aol.com/article/news/2016/11/11/donald-trump-s-muslim-ban-is-back-up-on-his-website/21604038/; Michelle Ye Hee Lee, “Donald Trump’s False Comments Connecting Mexican Immigrants and Crime,” Washington Post, July 8, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/?utm_term=.815e72ec4e59; and Savage, “Obama Policies Give Successor a Path to Vast Security Powers.”

14. Hensch, “Trump Won’t Rule Out Database.”

15. David A. Fahrehhold, “Trump Recorded Having Extremely Lewd Conversation About Women in 2005,” Washington Post, October 7, 2016, https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html; and Matt Baume, “The Top Ten Worst Comments Donald Trump Has Made About LGBTQ people,” LGBTQ Nation, February 4, 2016, https://www.lgbtqnation.com/2016/02/the-top-ten-worst-comments-donald-trump-has-made-about-lgbtq-people/.

16. Nonprofit VOTE and US Elections Project, “America Goes to the Polls: A Report on Voter Turnout, 2016 Presidential Elections,” http://www.nonprofitvote.org/america-goes-to-the-polls-2016/; “Presidential Results,” CNN, “Election 2016,” http://www.cnn.com/election/results/president.

17. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace & World, 1966), vii (emphasis added).

18. Samuel Moyn, “Why the War on Terror May Never End,” New York Times Book Review, June 24, 2016, http://www.nytimes.com/2016/06/26/books/review/spiral-by-mark-danner.html.

12. A STATE OF LEGALITY

1. Proclamation 7463—Declaration of National Emergency by Reason of Certain Terrorist Attacks, September 14, 2001; see also Executive Order 13223 of September 14, 2001, “Ordering the Ready Reserve of the Armed Forces to Active Duty and Delegating Certain Authorities to the Secretary of Defense and the Secretary of Transportation”; and Greenberg and Dratel, eds., The Torture Papers, 25 (Military Order of November 13, 2001).

2. Greenberg and Dratel, eds., The Torture Papers, 134 (Memo 11, dated February 7, 2002).

3. Oona Hathaway and Scott Shapiro, “Schmitt at Nuremberg,” in The Worst Crime of All: The Paris Peace Pact and the Beginning of the End of War (working paper in author’s possession, September 16, 2015), 12–13 and 22.

4. Hathaway and Shapiro, 22, quoting from Third Reich Sourcebook, 64.

5. Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2006), 5.

6. Carl Schmitt, The Concept of the Political, trans. George Schwab (1932; repr. Chicago: University of Chicago Press, 2007); and Carl Schmitt, Dictatorship (1921; repr. Polity Press, 2013).

7. Hathaway and Shapiro, 19, quoting from Bernd Rüthers, “On the Brink of Dictatorship—Hans Kelsen and Carl Schmitt at Cologne 1933,” in Hans Kelsen and Carl Schmitt: A Juxtaposition, eds. Dan Diner and Michael Stolleis (Gerlingen: Bleicher, 1999).

8. Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), 2, 20, 87, and 23.

9. Ibid., 86 and 4.

10. Michael Hardt and Antonio Negri, Multitude (London: Hamish Hamilton, 2005), 7. Hardt and Negri had already used the concept in Empire, describing the “right to intervention” as stemming from “a permanent state of emergency and exception justified by the appeal to essential values of justice.” Michael Hardt and Antonio Negri, Empire (Cambridge: Harvard University Press, 2000), 18.

11. Judith Butler, “Guantánamo Limbo,” The Nation, March 14, 2002, https://www.thenation.com/article/Guantánamo-limbo/; see also Judith Butler, Precarious Life: The Powers of Mourning and Violence (London: Verso, 2004).

12. Slavoj Žižek, “Are We In a War? Do We Have an Enemy?,” London Review of Books, May 23, 2002, 3–6, http://www.lrb.co.uk/v24/n10/slavoj-zizek/are-we-in-a-war-do-we-have-an-enemy.

13. Thomas Anthony Durkin, “Permanent States of Exception: A Two-Tiered System of Criminal Justice Courtesy of the Double Government Wars on Crime, Drugs & Terror,” Valparaiso University Law Review 50 (2016): 419–492, http://scholar.valpo.edu/vulr/vol50/iss2/3; and Kim Lane Scheppele, “Law in a Time of Emergency: States of Exception and the Temptations of 9/11,” University of Pennsylvania Journal of Constitutional Law 6 (2004): 1001–1083, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=611884.

14. Eric Posner and Adrian Vermeule, “Should Coercive Interrogation Be Legal?,” Michigan Law Review 104 (2006): 671–707; Eric Posner and Adrian Vermeule, “Demystifying Schmitt,” in The Oxford Handbook of Carl Schmitt, eds. Jens Meierhenrich and Oliver Simons (New York: Oxford University Press, 2017); John Yoo, War by Other Means: An Insider’s Account on the War on Terror (New York: Atlantic Monthly Press, 2006); and see generally Yoo memos in Greenberg and Dratel, eds., The Torture Papers.

15. Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal 113 (2004): 1030, 1037, and 1044, http://www.yalelawjournal.org/essay/the-emergency-constitution. For an in-depth discussion of the exception in American constitutionalism, see Thomas P. Crocker’s book manuscript, Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism.

16. Fareed Zakaria, “End the War on Terror and Save Billions,” Washington Post, December 6, 2012, https://www.washingtonpost.com/opinions/fareed-zakaria-end-the-war-on-terror-and-save-billions/2012/12/06/a468db2a-3fc4-11e2-ae43-cf491b837f7b_story.html.

17. Scott Horton, “State of Exception: Bush’s War on the Rule of Law,” Harper’s Magazine, July 2007, http://users.clas.ufl.edu/burt/Renaissancetragedy/Harpers.pdf; see also Scott Horton, “Benjamin—History and the State of Exception,” Harper’s Magazine, May 14, 2010, http://harpers.org/blog/2010/05/benjamin-history-and-the-state-of-exception/.

18. See also Mark Danner, “After September 11: Our State of Exception,” London Review of Books, October 13, 2011, http://www.nybooks.com/articles/archives/2011/oct/13/after-september-11-our-state-exception/; and David C. Unger, The Emergency State: America’s Pursuit of Absolute Security at All Costs (New York: Penguin Books, 2013). Unger argues that presidents since World War II have inflated external threats in order to justify the creation of an “emergency state,” which not only expands the powers of the executive branch and erodes civil liberties, but is also ineffective at protecting the nation.

19. The relationship between democracy and war, though, is complex, and for a nuanced discussion that explores the role of collective decision-making in rendering violence legitimate, see Christopher Kutz, On War and Democracy (Princeton: Princeton University Press, 2016).

20. Galula, Counter-insurgency Warfare, 56. I am by no means the first or only one to resist the framework of the state of exception. The historian Samuel Moyn also rejects the notion of exception, arguing that what we face today is a more restrained and humane war without end—we face what Moyn refers to as “a new form of humane warfare simultaneously without boundaries in time and space.” Samuel Moyn, “Why the War on Terror May Never End,” New York Times Book Review, June 24, 2016, http://www.nytimes.com/2016/06/26/books/review/spiral-by-mark-danner.html. Fleur Johns vehemently rejects the understanding of Guantánamo Bay as a domain of sovereign exception, arguing instead that Guantánamo is “an instance of the norm struggling to overtake the exception.” (Fleur Johns, “Guantánamo Bay and the Annihilation of the Exception,” European Journal of International Law 16, no. 4 (2005): 614–615, http://www.ejil.org/pdfs/16/4/311.pdf. Naser Hussain, in the pages of Critical Inquiry, contends that, rather than unique or exceptional, “many of the mechanisms and justifications we find there are continuous and consonant with a range of regular law and daily disciplinary state practices, in particular, the domains of immigration and domestic incarcerations—the difference being one more of degree than kind.” (Naser Hussain, “Beyond Norm and Exception: Guantánamo,” Critical Inquiry (2007), http://www.jstor.org/stable/10.1086/521567). Others as well criticize the turn to exception as an explanatory mechanism. See, for example, Venator Santiago, “From the Insular Cases to Camp X-Ray: Agamben State of Exception and United States Territorial Law,” Studies in Law, Politics, and Society 15, no. 5 (a critical account of Agamben’s use of the state of exception, especially in the United States). But none, to the best of my knowledge, have proposed the framework of counterinsurgency warfare.

21. Michel Foucault, The Punitive Society: Lectures at the Collège de France, 1972–1973, ed. Bernard E. Harcourt (New York: Palgrave, 2015), 144; and see generally the discussion of illegalisms in the “Course Context,” in Ibid., 281–293.

22. Ibid., 156, 146, and 149.

23. For a similar argument in the context of the death penalty, see Cass R. Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs,” Stanford Law Review 58, no. 3 (April 2010): 703.

24. Quoted in Greenberg, Rogue Justice, 221.

25. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1984).

26. Robert Weisberg, “De-regulating Death,” Supreme Court Review (1983): 305–395.

27. Senate Report, 19.

28. Greenberg, Rogue Justice, 252, 266, and 7.

29. National Defense Authorization Act (NDAA), quoted in Ibid., 206.

30. Greenberg, Rogue Justice, 206.

31. See Wadie E. Said, Crimes of Terror: The Legal and Political Implications of Federal Terrorism Prosecutions (New York: Oxford University Press, 2015); and Jameel Jaffer, introduction to The Drone Memos: Targeted Killing, Secrecy, and the Law, ed. Jameel Jaffer (New York: The New Press, 2016). For a fascinating critical theory and historical engagement with the notion of the rule of law, see Keally McBride, Mr. Mothercountry: The Man Who Made the Rule of Law (New York: Oxford, 2016).

32. Eric Holder, quoted in Greenberg, Rogue Justice, 206.

33. The American Constitution Society workshop, “Charlie Savage on the National Security State,” Thursday, November 12, 2015, Jerome Greene Hall 102A, Columbia University.

34. Greenberg, “From Fear to Torture,” xvii–xx, at xvii.

35. Memo to Commander, Joint Task Force 170 at Guantánamo Bay, October 11, 2002, signed by Diane E. Beaver, in Greenberg and Dratel, eds. The Torture Papers, 229.

36. Sitaraman, The Counterinsurgent’s Constitution, 240.

37. Michel Foucault, Abnormal: Lectures at the Collège de France, 1974–1975, eds. Valerio Marchetti and Antonella Salomoni (London and New York: Verso, 2004), 117 and 129; Michel Foucault, “About the Concept of the ‘Dangerous Individual’ in 19th Century Legal Psychiatry,” International Journal of Law and Psychiatry 1 (1978): 1–18.

13. A NEW SYSTEM

1. Bruce L. R. Smith, The RAND Corporation: Case Study of a Nonprofit Advisory Corporation (Cambridge: Harvard University Press, 1966), 6–7.

2. In the United Kingdom, where OR largely originated, it was called “operational research.” This definition is from the Operational Research Society of Great Britain, Operational Research Quarterly 13, no. 3 (1962): 2822, http://www.wata.cc/forums/uploaded/136_1167433681.pdf. For a history of Operations Research, see Maurice W. Kirby, Operational Research in War and Peace: The British Experience from the 1930s to 1970 (London: Imperial College Press 2003); and S. M. Amadae, Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism (Chicago: University of Chicago Press, 2003).

3. Operational Research Quarterly 13, no. 3 (1962): 282.

4. Edward S. Quade, Systems Analysis Techniques for Planning-Programming-Budgeting (Santa Monica: RAND Corporation, 1966), 3.

5. Smith, The RAND Corporation, 8.

6. Quade, Systems Analysis Techniques, 9.

7. Ibid., 10–11.

8. Ibid., 28.

9. On McNamara, see Deborah Shapley, Promise and Power: The Life and Times of Robert McNamara (Boston: Little, Brown and Company, 1993); John A. Byrne, The Whiz Kids: Ten Founding Fathers of American Business—and the Legacy They Left Us (New York: Doubleday, 1993); and H. R. McMaster, Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff, and the Lies that Led to Vietnam (New York: Harper Collins, 1997). I sketched some of this history in my previous book Exposed, 153–156, and there are excellent histories of the birth of systems analysis, see especially Amadae, Rationalizing Capitalist Democracy.

10. Quade, Systems Analysis Techniques, 2.

11. United States General Accounting Office, Survey of Progress in Implementing the Planning-Programming-Budgeting System in Executive Agencies; Report to the Congress (Washington, DC, 1969), 4.

12. Quade, Systems Analysis Techniques, 2.

13. James R. Schlesinger, “Quantitative Analysis and National Security,” World Politics 15, no. 2 (1963): 295–316, at 314.

14. See generally, W. Kip Viscusi and Joseph E. Aldy, “The Value of a Statistical Life: A Critical Review of Market Estimates throughout the World,” NBER (working paper no. 9487, February 2003), 54–56, www.nber.org/papers/w9487.pdf.

15. See President Carter’s executive order E.O. 12044 (tasking all executive agencies with the duty to conduct economic impact studies of all major government regulations); President Reagan’s executive order E.O. 12291 (assigning the responsibility to the Office of Management and Budget); and President Bill Clinton’s 1996 executive order E.O. 12866 (on the “Economic Analysis of Federal Regulations”).

16. The President’s Review Group on Intelligence and Communications Technologies et al., The NSA Report: Liberty and Security in A Changing World (Princeton: Princeton University Press, 2014), 50–53, https://obamawhitehouse.archives.gov/blog/2013/12/18/liberty-and-security-changing-world.

17. Paret and Shy, Guerrillas in the 1960’s, 3.

18. Marlowe, David Galula, 12.

19. Paret and Shy, Guerrillas in the 1960’s, 3–4 and 4n3; Marlowe, David Galula, 13; and see generally Kristian Williams, introduction to Life During Wartime: Resisting Counterinsurgency, eds. Kristian Williams, Will Munger, and Lara Messersmith-Glavin (Oakland, CA: AK Press, 2013).

20. It is important to emphasize here—and it is somewhat remarkable—that Galula’s seminal book, Pacification in Algeria 1956–1958, was originally published in English. In other words, it was originally published in translation, and only decades later published in its original French. This is true as well of his more theoretical treatise, Counterinsurgency: Theory and Practice. A French translation of Counterinsurgency appeared through the publishing house Economica in 2008; and a French translation of Pacification in Algeria was only published in 2016 by the publishing house Les Belles Lettres—which is mostly known for its ancient and classical texts, like the Loeb editions. That’s rare and remarkable in the publishing business, and it reflects the influence of RAND and the extent to which RAND shaped the discourse on counterinsurgency.

21. See Marlowe, David Galula, 9.

22. Martin A. Lee and Bruce Shlain, Acid Dreams: The CIA, LSD, and the Sixties Rebellion (New York, Grove Press, Inc., 1985), 196–197.

23. Gompert and Gordon, War by Other Means, iii. The 2008 report created a number of other byproduct studies, including among others: Byting Back—Regaining Information Superiority Against 21st-Century Insurgents: RAND Counterinsurgency Study, vol. 1, by Martin C. Libicki et al.; Counterinsurgency in Iraq (2003–2006): RAND Counterinsurgency Study, vol. 2, by Bruce Pirnie and Edward O’Connell; Heads We Win—The Cognitive Side of Counterinsurgency (COIN): RAND Counterinsurgency Study, paper 1, by David C. Gompert; Subversion and Insurgency: RAND Counterinsurgency Study, paper 2, by William Rosenau; Understanding Proto-Insurgencies: RAND Counterinsurgency Study, paper 3, by Daniel Byman; Money in the Bank—Lessons Learned from Past Counterinsurgency (COIN) Operations: RAND Counterinsurgency Study, paper 4, by Angel Rabasa et al.; and Rethinking Counterinsurgency—A British Perspective: RAND Counterinsurgency Study, paper 5, by John Mackinlay and Alison al-Baddawy. See Gompert and Gordon, War by Other Means, vi–vii.

24. Gompert and Gordon, War by Other Means, vii.

25. There has also been a revolving door between the institutions: James Schlesinger, for instance, the former CIA director and secretary of defense, was a strategic analyst at the RAND Corporation, and Henry Rowen, who served as president of RAND, previously headed up the CIA’s National Intelligence Command. Other lower-level agents and researchers would also go back and forth between the institutions. See generally Lee and Shlain, Acid Dreams, 197; and Valtin, “CIA, RAND Ties Muddy APA Torture ‘Investigation,’” Daily Kos, June 7, 2015, http://www.dailykos.com/story/2015/06/07/1391345/-CIA-RAND-Ties-Muddy-APA-Torture-Investigation (“Douglas Valentine in his book, The Phoenix Project, describes how top CIA Phoenix official, Robert “Blowtorch” Komer, left the Agency to work for RAND in 1970”).

26. FM, 141–142.

27. FM, 142.

28. Ibid.

29. Cora Currier, “Blowing the Whistle on CIA Torture from Beyond the Grave,” The Intercept, October 17, 2014, https://firstlook.org/theintercept/2014/10/17/blowing-whistle-cia-torture-beyond-grave/; see also Scott Gerwehr, “Letter to the Editor: States of Readiness: Do New Threats Loom?; Stopping Terror,” New York Times, October 1, 2001 (“The writer is a policy analyst specializing in deception and psychological operations at the RAND Corporation”), http://www.nytimes.com/2001/10/01/opinion/l-states-of-readiness-do-new-threats-loom-stopping-terror-439100.html; Scott Gerwehr and Nina Hachigian, “In Iraq’s Prisons, Try a Little Tenderness,” New York Times, August 25, 2005, http://www.nytimes.com/2005/08/25/opinion/in-iraqs-prisons-try-a-little-tenderness.html; Valtin, “CIA, RAND Ties”; “Shocking: 2003 CIA/APA ‘Workshop’ Plots New Torture Plans,” Invictus, May 26, 2007, http://valtinsblog.blogspot.com/2007/05/shocking-2003-ciaapa-workshop-plots-new.html#.VYGMSUtq61w; and Tamsin Shaw, “The Psychologists Take Power,” New York Review of Books, February 25, 2016, http://www.nybooks.com/articles/2016/02/25/the-psychologists-take-power/.

30. Valtin, “CIA, RAND Ties.”

31. “Shocking: 2003 CIA/APA.” The report and list of attendees of the 2003 workshop are available online here: https://www.documentcloud.org/documents/2065302-scienceofdeceptionworkshopreport.html.

32. Currier, “Blowing the Whistle on CIA Torture.”

33. It is clear as well that RAND has had a significant role and its involvement in the systematic development of counterinsurgency theory continues to the present. Still today, RAND has an extensive list of current publications on counterinsurgency, which remains one of its important axes of research. See, for example, http://www.rand.org/pubs/monographs/MG595z5.html.

34. See, for example, Timothy Kudo, “How We Learned to Kill,” New York Times, February 27, 2015: “Throughout the past century, military social systems and training evolved to make humans less reluctant to take a life”; “The madness of war is that while this system is in place to kill people, it may actually be necessary for the greater good”; “To fathom this system and accept its use for the greater good is to understand that we still live in a state of nature.”

OCKHAM’S RAZOR, OR, RESISTING THE COUNTERREVOLUTION

1. William of Ockham, Epistola ad fratres minores in Opera Politica, vol. 3, 1–17, eds. Ralph Francis Bennett and Hilary Seton Offler (Manchester: Manchester University Press, 1956), at p. 6; and see William of Ockham, Court traité du pouvoir tyrannique, trans. Jean-Fabien Spitz (Paris: Presses Universitaires de France, 1999), 4.

2. William of Ockham, Breviloquium de principatu tyrannico, in Opera Politica, vol. 4, 97–260, ed. Hilary Seton Offler (Oxford: Oxford University Press, 1997), bk. 1, chap. 4, p. 102 (“Admonendi sunt subditi, ne plus quam expedit sint subiecti”). Ockham is here quoting Pope Gregory. This is my translation. A more historically and theoretically faithful translation would be “subjects should be admonished not to be subjected more than is asked of them,” with the Latin term admonendi rendered closer to the notion of forewarned, advised, instructed, and the Latin term subiecti rendered closer to the concept of subjectification. The latter is very close to the Foucaultian notion of assujettissement. However, in contemporary American English, the notion of subjectification is too rarified and the term admonished now too close to punishment. In addition, in the present political context, the meaning of subiecti comes close to the more forceful concept of subjugation; so to help readers understand the passage, I decided to strike a more modern balance. The Cambridge edition reads: “Subjects should be urged not to be more subject than is useful” (William of Ockham, A Short Discourse on Tyrannical Government, trans. John Kilcullen, ed. Arthur Stephen McGrade (Cambridge: Cambridge University Press, 1992), 9. The French edition translates the papal quotation as “les sujets doivent être avertis de ne pas être assujettis plus qu’il n’est nécessaire” (William of Ockham, Court traité du pouvoir tyrannique, trans. Jean-Fabien Spitz (Paris: Presses Universitaires de France, 1999), 102.

3. William of Ockham, bk. 2, chap. 3, p. 115, in Breviloquium; Ockham, Court traité du pouvoir tyrannique, 120–121; and Ockham, A Short Discourse on Tyrannical Government, 23–24.

4. Ockham, bk. 2, chap. 3, p. 114–115, in Breviloquium; Ockham, Court traité du pouvoir tyrannique, 119; and Ockham, A Short Discourse on Tyrannical Government, 22.

5. Michel Foucault, Qu’est-ce que la critique?, eds. Henri-Paul Fruchaud and Daniele Lorenzini (Paris: Vrin, 2015), 37; and Michel Foucault, Théories et institutions pénales, ed. Bernard E. Harcourt (Paris: Gallimard/Le Seuil, 2015).

6. Ockham, bk. 1, chap. 4, p. 102, in Breviloquium (“subiectionem autem nimiam cavere non possunt, nisi sciant quam et quantam super eos praesidens habeat potestatem”). A more literal and historical translation might be “subjects cannot be attentive to excessive subjection unless they know of what kind and to what extent the one who presides over them (praesidens, as in the one who is on top of them) exercises power over them.” The use of praesidens here, related of course to the term president, is pregnant. For other translations, see Ockham, Court traité du pouvoir tyrannique, 102 (“Or ils ne peuvent se défier de la sujétion excessive, à moins de savoir quelle est la nature et l’étendue du pouvoir que celui qui est à leur tête possède sur eux”); and Ockham, A Short Discourse on Tyrannical Government, 9 (“But they cannot be on guard against excessive subjection unless they know what and how much power their superior has over them”).

7. See the Bureau of Investigative Journalism, “Drone Warfare”; and see also Pitch Interactive, “Out of Site, Out of Mind,” http://drones.pitchinteractive.com/.

8. “Ce qu’il y a de plus scandaleux dans le scandale c’est qu’on s’y habitue.” See Judith Surkis, “Ethics and Violence: Simone de Beauvoir, Djamila Boupacha, and the Algerian War,” special issue, French Politics, Culture & Society 28, no. 2 (Summer 2010): 38–55, quote at 38.

9. Pierre Vidal-Naquet, La Torture dans la République (Paris: La Découverte/Maspero, 1975); Vidal-Naquet, L’Affaire Audin (Paris: Les Éditions de Minuit, 1958). In particular, Vidal-Naquet took on the cause of Marcel Audin, in reports and pamphlets denouncing what he would call his “assassination” (Vidal-Naquet, L’Affaire Audin, 100). Many years later, Aussaresses would confess to ordering the killing of Audin. See http://www.francetvinfo.fr/france/video-les-aveux-posthumes-du-general-aussaresses-on-a-tue-audin_500432.html.

10. See his famous article, “The Question,” L’Express, January 15, 1955; cf. Stora, Algeria 1830–2000, 51.

11. Stora, Algeria 1830–2000, 50; and see generally, Jean Charles Jauffret, Ces officiers qui ont dit non à la torture, Algéries 1954–1962 (Paris: Éditions Autrement, 2005).