Whatever happened to martial law?

Detainees and the logic of emergency

RP 143 () / Article

Began teaching the detainee lessons such as stay,
come, and bark to elevate his social status up to
that of a dog. Detainee became very agitated.
– Guantánamo guard diary entry, 20 December 2002

What is a detainee? The term has been given a new lease of life as a result of the authoritarianism that has followed the attacks on the World Trade Center, in which the state has ʻdetainedʼ countless numbers of people without charge or trial. The label ʻdetaineeʼ serves to separate their status from that of both ʻprisonerʼ and ʻprisoner of warʼ, and has been central to the legal manipulation of attempts to free them or even to criticize their treatment. Leaving aside the obvious fact that many of those being detained have been tortured and almost all have been subject to inhumane treatment, the central issue surrounding them concerns one of the supposed foundation stones of liberal democracy: the principle of habeas corpus. In being interned without charge or trial the figure of the detainee is an affront to this fundamental right of liberty and the associated belief that any form of imprisonment must follow the rule of law. The detainee necessarily involves derogation by the state from the fundamental norms of human rights. In this sense the detainee is central to precisely the kind of rule against which liberal democracy purports to set itself: forms of ʻtotalitarianʼ rule or ʻpolice statesʼ in general. ʻDetaineeʼ comes to us from the French détenus and its original reference point was the French ʻpolice stateʼ of the eighteenth century. In particular, given the militarized context of the wider ʻwar on terrorʼ, the detainee also smacks of regimes which employ the military as a means of policing civil order. Symptomatically, detainees are usually also held in spaces, camps or prisons controlled by the military. The detainee, in other words, is an emblematic figure of martial law.

The question ʻwhat is a detainee?ʼ, then, begs another question: ʻwhat is martial law?ʼ More to the point, how can so many individuals now be held as ʻdetaineesʼ without a declaration of martial law on the part of those sovereign entities detaining them? Indeed, whatever happened to martial law as a form of rule? Here, I trace the contemporary logic of martial law through a critical genealogy of its history. This logic and genealogy tell us something interesting about the nature of rule in contemporary capitalist states. This rule, I suggest, has involved the transformation of martial law into a form appropriate for liberal democracies. What I am tracing, then, is in some sense the liberalization of martial law. This liberalization occurred through the generation of new concepts that permitted the most important practices of martial law to be carried out, but in a form more easily defended on liberal terms: emergency powers and national security . I link some of the overlapping themes and assumptions of these two ideas that animate the new liberal authoritarianism to the history of martial law. The political intention behind making such links is to develop further the critique of security. This is a pressing political task for the Left, which, rather than develop such a critique, has tended instead to accept the liberal grounds of much of the current debate about security. This has left it unable to do much more than reiterate liberal demands for a ʻreturn to lawʼ or argue for a better ʻbalanceʼ between liberty and security. [1]