BIOS: Life, Death, Politics; "On Criminals, Enemies, and Enemy Combatants": Paul Kahn's Keynote Lecture

Thursday, May 6, 2010

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Left: Guards lead a detainee at Guantanamo Bay Naval Base

[In our continuing coverage of the 4/30-5/1 conference, BIOS: Life, Death, Politics, Michael Verderame writes on the afternoon keynote lecture by Paul Kahn (Yale Law)]

Written by Michael Verderame (English)

Paul Kahn’s keynote address focused on two categories often opposed to one another in legal and political thought—the enemy and the criminal. The crucial distinction between the two categories, for Kahn, lies in their relationship to the circle of social concern. Enemies exist outside the boundaries of society, and therefore the state can legitimately exercise violence, even lethal violence, against them. Criminals, on the other hand, despite their transgressions, retain membership in the social order, and the state is restricted in what modes of punishment it can properly exercise.

The preservation of the enemy/criminal distinction, Kahn argued, is crucial to the political imaginary underlying the modern liberal, paternalist state; the presence or absence of “love,” in his words, is what enables societies to tell the difference between criminals (deserving of punishment but still members of the social “family”) and enemies. The most egregious instances of torture and abuse of civil liberties arise when the distinction is collapsed or blurred, as in the case of treason against the state or the War on Terror’s new enemy/criminal hybrid category, the “unlawful combatant.”

Kahn’s intriguing and eclectic talk ranged from American Revolutionary War history to the constitution of the European Union (which, in its hypertechnicality, Kahn sees an attempt to eliminate the sovereign while retaining the rule of law) to contemporary films such as The Matrix, Taken, and Inglourious Basterds. The common thread in Kahn’s historical narrative is the use of violence, and the “sacrificial history” of wounded, maimed, and dead bodies, to symbolically reconstitute the law. This link was made explicit in Abraham Lincoln’s speech commemorating veterans of the Revolutionary War, in which Lincoln described veterans’ bodies as literally embodying a “religion of law.”

In the lively discussion following Professor Kahn’s talk, several people asked about the conspicuous absence of race in his narrative about the construction of enemies and criminals, and indeed at times Kahn did seem close to endorsing a narrative of progress that covers up racial difference. Kahn repeatedly situated his remarks in the context of the wars in Afghanistan and Iraq, but another contemporary political context sprang immediately to mind for me: the current hostility towards undocumented immigrants, culminating in repressive legislation in Arizona. Undocumented immigrants, like “enemy combatants,” trouble the distinction the state attempts to preserve between criminals and enemies. Marked as racially and ethnically other, they are defined both as “criminals” (for being present in the country illegally) and, increasingly as “enemies”—a foreign presence, almost an invading army, that threatens to transform the cultural character of the polity and is therefore undeserving of the due process protections normally afforded to criminal defendants.

I wonder how this increasing figuration of undocumented immigrants as “enemies” can be assimilated into Kahn’s narrative, which seems to paint the narrative of American history as over time broadening, not restricting, the scope of social concern.

It seems to me that the relationship between criminals and enemies has become increasingly porous in other ways in the last few decades. The creation of a homeland security apparatus, complete with color-coded terror alerts, explicitly militarizes the domestic political body in new ways. For the last few decades it’s been common to speak of America’s inner cities as “war zones” and for major cities’ police departments increasingly to adopt military tactics and procedures. Political responses to the September 11, 2001 attacks (sometimes coded as criminal and other times as acts of war) also highlighted the instability of these categories.

John Walker Lindh, the “American Taliban,” provides an especially intriguing test case for Kahn’s theory of parental love as underlying the distinction between criminals and enemies. The uncertain legal status of the prosecution of the white, upper-middle-class, quintessentially “American” youth who chose to take up arms with the Taliban, became a Rohrschach test of the limits of liberal paternalism. Was Lindh a “criminal,” who had violated his country’s laws but remained within its sphere of concern, or was he an “enemy,” who had aligned himself against the United States and forfeited his membership in the polity?

In the end, Professor Kahn steered clear of making normative judgments about the categories of criminal and enemy, instead charting the beginnings of a genealogy of how these concepts have functioned in our juridico-political imagination. But I wonder if it possible to envision a state which classified neither criminals nor enemies, or must both categories be classified in order to constitute a state in the first place?


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Bruce Rosenstock said...

I didn't hear Kahn's talk. Did he acknowledge that the criminal/enemy distinction is basic to Carl Schmitt's attack on international criminal law concerning war? Schmitt's essential point in Concept of the Political is that the criminalization of war (part of the international effort at ending war before and after World War I) placed the enemy into the legal space of the hostis humani generis, the criminal category occupied by the pirate. In effect, war is replaced by police actions taken up by the international order and effectively manipulated by the most powerful state agent. Schmitt is quite prescient about our current international order. Schmitt drew the wrong conclusion, attacking the very idea of an international legal order (and thus the legitimacy of war crimes trials). Kahn seems to forget that some criminals -- the people like the Sudanese president under indictment by the ICC -- have precisely placed themselves outside the framework of our human "family" by their crimes against humanity. It is precisely the need for international standards of justice that makes the status of "unlawful combatant" so troubling, by taking them outside the jurisdiction of both international and municipal law. Whether or not we love our enemies or our criminals is a matter of personal inclination; what we need is precisely an international (Kant would say cosmopolitan) "religion of law." I take it that this is what Arendt wanted when she called for a tribunal that could try Eichmann without making him into an enemy of the Jewish people or a criminal against humanity undeserving of anything but extermination.

Anonymous said...


Thanks for your comments, and I agree with your analysis about the limits of love as a basis for an international legal order. I didn't mention it in my post, but Kahn did use Schmitt as the starting point for his analysis of the criminal/enemy distinction, and he also discussed the Bashir case.

Michael Verderame

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