Liberal Lawfare and Biopolitics: US Juridical Warfare in the War on Terror

Two basic forms of ‘lawfare’ are employed by the United States in its enactment of the war on terror, both of which have a biopolitical focus. The first strategy has been well documented. 1 1. See, for example: D. Gregory, ‘The Black Flag: Guantánamo Bay and the Space of Exception’, Geografiska Annaler B 88/4 (2006) pp. 405–427; S. Reid-Henry, ‘Exceptional Sovereignty? Guantanamo Bay and the Re-Colonial Present’, Antipode 39/4 (2007) pp. 627–648; G. Kearns, ‘The Geography of Terror’, Political Geography 27/3 (2008) pp. 360–364; A. D. Barder, ‘Power, Violence and Torture: Making Sense of Insurgency and Legitimacy Crises in Past and Present Wars of Attrition’, in F. Debrix and M. Lacy (eds.), The Geopolitics of American Insecurity: Terror, Power and Foreign Policy (New York: Routledge 2009) pp. 54–70; and A. Macklin, ‘Transjudicial Conversations about Security and Human Rights’, in M. B. Salter (ed.), Mapping Transatlantic Security Relations The EU, Canada and the War on Terror (New York: Routledge 2010) pp. 212–235. It involves the indefinite detention and sometimes extraordinary rendition of enemy combatants, legally sanctioned and politically justified by the ‘exceptional’ circumstances of late modern war and terrorist violence. Geography plays a central role in strategy number one: the legal statuses of detainees, whose lives and bodies are cast out and denied basic juridical rights, are bounded, identified and allowed for in extra-territorial spaces throughout the world, from Guantanamo Bay to Bagram Air Force Base. Such exceptional biopolitical spaces are essentially ‘defensive’ and operate at the local scale. On the contrary, the second seldom-discussed legal strategy conditions and protects the US military in ‘offensive’ mode, operates at the national and transnational scale, and involves the careful legal designation and protection of US military personnel in forward deployed areas. 2 2. Both strategies work in concert with each other of course, with various locations acting as both ‘base’ and ‘prison’. This paper is centrally concerned with strategy number two – a strategy that can be defined as ‘forward juridical warfare’ and involves the US military's mobilisation of the law in the waging of war along the ‘new frontiers’ of its war on terror. The paper seeks to expound the legal and biopolitical constitution and operation of the current US military's forward presence overseas, and begins by drawing on recent work on biopolitics that has sought in various ways to critique the proliferation of practices of liberal lawfare and securitization in our contemporary world.