My students are 18. They were in 6th grade, more or less, when the Abu Ghraib photos were published, so to them the high (?) point of the War on Terror certainly is history—even if they’ve never before thought about it as a moment in the history of U.S. law. They don’t seem to think that they have too much liberty—in fact, they don’t seem to think they have too much of anything. They sure don’t think that they (or we, us older grownups and them together) can rule-of-law or law-from-below our way out of the mess the U.S. got itself –and, of course, lots of other people—into in the decade just past.
They are outraged by Abu Ghraib and the iceberg of which it is, Danner teaches us, the tip. But when we talked about it historically and legally, they got tied up in knots. One student insists that war is different from peace, and so we have to accept what happened at Abu Ghraib as a result of war. I asked whether he was prepared to make the same argument about Japanese internment—and he wasn’t, quite. Another was completely outraged by the behavior of the perpetrators of abuse at Abu Ghraib—the folks with their thumbs up, smiling over the twisted bodies. But she talked about culpability as a series of remedial policies that should have been put in place, things the Bush administration should have done to ensure that there would not be a second Abu Ghraib. A third insisted that essentially nothing could be done; there were simply too many people involved, too much culpability. Law failed, politics failed, and that was pretty much what had to happen. And so here we are. A fourth analogized to Penn State (which was pretty interesting): maybe the United States needed, or still needs, to make examples of a few especially powerful people with lots of cachet, to wake everybody up. But then he backed off, admitted to ambivalence about this strategy even in State College, PA, to say nothing of the obvious comparison to Secretary Rumsfeld and President Bush being sent off to the Hague to make an argument to the rest of the world – and ourselves – about what the legal and moral norms of the United States are.
In October, Danner published a piece in the New York Review of books for the 10th anniversary of 9/11. He alleged that the U.S. is living in a perpetual “State of Exception.” Another way to say this: The era that followed 9/11 was a distinct moment in the legal (and political, etc.) history of the United States, and one that has not ended. Read Danner’s piece here:
And while you’re at it, get a copy of Paul Halliday’s book Habeas Corpus: From England to Empire, now available in paperback and a much-deserved Honorable Mention winner for the John Philip Reid Prize at the November ASLH meeting. It’s a deeply researched piece of English legal history, but in its way just as devastating a reflection on the recent past in the U.S. and England—and on our more distant pasts--as Danner's. Check it out here:
And if you want more, check out Nasser Hussain’s 2003 book, The Jurisprudence of Emergency – about the English in India but I think it really helps for historicizing the War on Terror. Check it out here: