On October 27, 2019, President Donald Trump announced, via a speech that was televised throughout the United States and the world, that Abu Bakr al-Baghdadi, the leader of ISIS, had been killed in the course of an operation conducted by US special forces. What does this killing—an extraterritorial, extrajudicial assassination—mean for law in our post-9/11 world?
Conventionally, modernist and positivist thinking regards law as something boundaried and binaried, such that law’s other is “illegal” or “not law.” Against this conventional understanding of law, critical theorists perceive all that we embody and enact as expressing law and rules. As philosopher of law Margaret Davies writes in Asking the Law Question, law and rules “exist only in reality, that is, only because we live them, we continually create and transform rules as we exist.” What then are the law and rules brought into existence by the assassination of al-Baghdadi?
Assassination is not a new technology of state power, but up to 1975, the United States had not admitted to conducting extrajudicial killings. In the more recent post-9/11 climate, prior to the killing of Osama bin Laden, information on extrajudicial killings appears to have entered the public domain through leaks and comments from officials not authorized to speak. These news reports on killings in Yemen and Somalia are typical of the government’s tendency to minimize publicity and links to state authority. After 9/11, the United States argued that extrajudicial killings, now somewhat euphemistically called “targeted killings,” are permissible in military operations and self-defense.
But liberal legality—the version of law embraced by liberal democracies—celebrates due process, the presumption of innocence, the proof of guilt, and punishment in accordance with the law. Assassination is beyond the bounds of liberal legality. For one of the world’s leading liberal democracies to publicly proclaim its practice of assassination does seem to be a specifically post-9/11 phenomenon. And it is a phenomenon altering the parameters of law in that the very modality of a public announcement delivered by the head of state constitutes an assertion of state legitimacy. Indeed, it seems probable that Barack Obama’s May 2011 announcement on the bin Laden killing may represent the first instance of the United States making a celebratory public declaration with reference to a killing that arguably occupies the sphere of illegality.
In Trump’s speech, and in the new (and apparently staged) Trump Situation Room photograph, parallels to the assassination of Osama bin Laden abound. With the bin Laden killing, as with the al-Baghdadi killing, key members of the National Security Council sat in the Situation Room and watched some kind of video relayed from the scene of the assassination. A certain amount of media attention has dwelt on the differences between the two Situation Room photographs and the two very different speeches made by Obama and Trump.
But perhaps the similarities between these two events are far more significant than the differences. First, both presidents claimed justice had been served by the assassinations of these terrorists. While invoking justice, neither president invoked law. Law, it seems, can now be uncoupled from justice. Augmenting the absence of law (both as a lexical item in their speeches, and in the fact that these killings were extrajudicial), both presidents celebrated military and counterterrorism personnel and left law and legal institutions out of the picture.
Second, both presidents made a clear distinction between two categories of human beings: Americans and not-Americans. Both presidents were happy to report that no US personnel had been harmed in the course of these operations. While Trump claims “a large number of Baghdadi’s fighters and companions were killed with him,” and Obama said care had been taken to “avoid civilian casualties,” neither president counted the lives of non-Americans who had been killed or injured. At least four others were killed in the raid on bin Laden’s Abbottabad compound. According to US sources, three men and a woman were killed but Pakistani intelligence asserts that, in addition to bin Laden, four other men were killed. In his speech announcing the killing of bin Laden, President Obama said, “A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties.” The category “civilian” has, in the course of the continuing War on Terror, become especially contested and it is unclear what role was played by the others who were killed. We do not have reliable information as to whether these others were armed or not, for example. While some reports note the killing of these four others in the raid, the legality of these killings has generally not been questioned. Tellingly, while media has paid attention to the troublingly “celebratory tone” marking Trump’s speech, and to his deprecations of al-Baghdadi’s fear as he was pursued by dogs down a tunnel, media has participated in this distinction between the lives of Americans and not-Americans by omitting to question the legality of the killing of these nameless (and in the case of the al-Baghdadi raid, uncounted) others.
And third, both assassinations involved an expansive, extraterritorial reach for American military power, in keeping with the jurisdiction the 9/11 Commission Report has claimed for the United States. The Commission argues, “9/11 has taught us that terrorism against American interests ‘over there’ should be regarded just as we regard terrorism against America ‘over here.’ In this same sense, the American homeland is the planet.” In short, for the United States, planetary jurisdiction maps onto homeland security.
I should note that, according to Trump, al-Baghdadi killed himself and the three children who were in the tunnel with him by detonating his suicide vest. The question therefore remains whether US special forces might have planned to capture rather than kill al-Baghdadi. Significantly, however, in the course of his news conference, Trump repeatedly said, “We kill terrorists,” and said that a “large number of Baghdadi’s fighters and companions were killed with him.” The assumption that this was a mission directed at killing rather than capturing seems to have been a shared assumption in that none of the reporters asked Trump about the possibility of a capture.
With extraterritorial, extrajudicial assassination normalized, and law’s foundational protection of human life selectively discarded, we are witnessing the unfolding of a new law. This law eclipses the values and institutions of liberal legality while fostering the secretive, belligerent values and institutions of the unending War on Terror. Key to this unfolding is a double move in relation to law.
First, liberal legality’s insistence on rule of law and what Grégoire Chamayou has termed the meta-legal right to life are notionally upheld even as a narrative of War on Terror exceptionalism scripts justification for departures from these principles. The meta-legal valuing of human life usefully distinguishes this conception of what it is to be human from the rights bestowed by liberal legality. Within the framework of liberal legality, exception and emergency might too easily strip people and populations of law’s protections. In the space between these two declared accounts of law—the rule of law and the right to life, and War on Terror exceptionalism—is an undeclared law invested in the discounting of some lives so that others may live: necropolitical law.
In naming necropolitical law, I draw on Achille Mbembe’s highly influential theorizing of necropolitics that relies on Michel Foucault’s analysis of the sovereign right to kill—a form of politics fostering not life, but death. This focus on death in necropolitics, Mbembe explains, accounts for “the contemporary ways in which the political, under the guise of war, of resistance, or of the fight against terror, makes the murder of the enemy its primary and absolute objective.” Consistent with necropolitics, necropolitical law turns away from liberal legality’s exaltation of the right to life by scripting “the state of exception and the relation of enmity . . . [as] the normative basis of the right to kill.” Through the lens of necropolitical law, the extraterritorial, extrajudicial assassination becomes its own rationality. After all, necropolitics “continuously refers and appeals to exception, emergency, and a fictionalized notion of the enemy. It also labors to produce that same exception, emergency, and fictionalized enemy.” The assassinations of al-Baghdadi and bin Laden, and the presidential speeches announcing these events, simultaneously nurture and produce the unfolding contours of the necropolitical law of assassination.
In addition to dislodging the meta-legal principle that all human life should be valued and protected equally, this necropolitical account of law reconfigures the liberal legal understanding of nation-state sovereignty. Rather than the (notional) primacy of state sovereignty within a state’s own borders, and the (notional) containment of state sovereignty to state territory such that states rule only within their own borders, necropolitics, Mbembe suggests, is animated by sovereignty expressed “in the power and the capacity to dictate who may live and who must die.” This form of sovereignty—directed at bodies—is not constrained by borders or by liberal legality, as illustrated by the killings of al-Baghdadi and bin Laden. Under liberal legality, the categories sovereignty, jurisdiction, territory, control, and law are tethered together as foundational pillars underpinning the same sociopolitical terrain. However, necropolitical tactics disaggregate sovereignty, territory, jurisdiction, law, and control such that power over populations and territory may be exercised without concomitant obligations to extend law’s protections to these populations.
Necropolitics, as Mbembe traces, has deep roots in the racialized logics of imperialism and colonialism. Within the immediate borders of the United States, Leti Volpp traces the redeployment of old Orientalist tropes in the post-9/11 racial profiling engaged in by government policy and practice, but also as expressed in the acts of violence generated by ordinary people. Does another connection between past and present mark the necropolitical law of assassination? As I read Trump’s speech, describing how dogs had been used to pursue the entrapped al-Baghdadi, I heard echoes of the way dogs had been trained to find and attack escaping slaves in nineteenth-century America. Even as state-of-the art technology has made so much of the al-Baghdadi assassination possible, old techniques of savagery have also been at work. Like necropolitics and Orientalism, the necropolitical law of assassination pulls together many threads of the past into our present. In the process, law as we know it has been displaced.