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Whatever happened to martial law?
Detainees and the logic of
emergency
Mark Neocleous
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 ‘detained’ countless numbers of people without charge or
trial. The label ‘detainee’ serves to separate their status from that of both
‘prisoner’ and ‘prisoner of war’, 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
‘totalitarian’ rule or ‘police states’ in general. ‘Detainee’ comes to us from
the French détenus and its original reference point was the French ‘police
state’ of the eighteenth century. In particular, given the militarized context
of the wider ‘war on terror’, 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 ‘what is a detainee?’, then, begs another question: ‘what is
martial law?’ More to the point, how can so many individuals now be held as
‘detainees’ 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 ‘return to law’ or argue for a better ‘balance’
between liberty and security.1
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