Where is the Law in ‘ Unlawful Combatant ’ ? Resisting the Refrain of the Righteous

The rhythms of war and popular culture intermingle, amplify each other and become expressive. At the leading edge of the US military’s war machine assemblage, as the nation of Iraq is deterritorialised from the despotic signifier ‘Saddam Hussein’, the soldiers’ music consolidates a milieu of the battlefield. It also consolidates a space-time of the here-now with something less horrific. The popular music refrain produces a home away from home. In their patriotism, many of these singer–soldiers see a religious act. When someone is saying ‘God is on our side’ they are no longer talking about the nation-based context for which, whatever the rules of war might be, such rules are relevant. They’re talking about a Holy War. It has different rules. How to hold them to any actual account is the difficulty we seek to explore here.

seeking to prove the dysfunctionality of a generation brought up on video games and action flicks, and perhaps it is because we are closer to the troops' age than many critics' that we view the situation a little differently. 1The soldiers' music can be seen to organise a territorial space within the chaos of the battlefield, an example of Gilles Deleuze and Felix Guattari's concept of the 'refrain'.While Deleuze and Guattari write of a child in the dark, here is an example of the soldierchild in the Heart of Darkness. 2The rhythms of war and popular culture intermingle, amplify each other and become expressive.Certainly the soldiers' preferred music genres of gang--bangers (Tupac) and cock--rockers (Guns n' Roses) resonate with conventional notions of military machismo, but a focus on the 'textual' ignores the function of the music to produce little islands of reassuring order.At the leading edge of the US military's war machine assemblage, as the nation of Iraq is deterritorialised from the despotic signifier 'Saddam Hussein', the soldiers' music consolidates a milieu of the battlefield.It also consolidates a space--time of the here--now with something less horrific.The popular music refrain produces a home away from home. 3 Michael Moore's selective use of Gittoes's footage in Fahrenheit 9/11 may have encouraged an alarmist reaction to the jocks singing Bloodhound Gang as the tanks roll, but the wider context of Soundtrack to War encourages viewers to sympathise with these attempts to find the briefest of homes amidst the horrors of war. 4 More worrying, we suggest, are the scenes in which troops explain what else gets them through the war experience.While for some it's gore metal, for at least as many it's their God that sustains them.It's 'the blood that Jesus shed' that gives the towering blond Dawson Leary look--alike 'the strength' to go on 'from day to day'.It's 'a mighty God' the gospel singers 'serve' as they seek to share a smile with those they meet.This is the refrain ringing out from rooftops while bombs drop mere miles away.
Why is this worrying?Because in their patriotism, these singer-soldiers see a religious act.
When someone is saying 'God is on our side' they are no longer talking about the nation--based context for which, whatever the rules of war might be, such rules are relevant.They're talking about a Holy War.It has different rules.How to hold them to any actual account is the difficulty we seek to explore here.

-THE REFRAIN OF THE RIGHT-EOUS
The righteous refrain in the soldiers' songs reflects the rhythm of patriotic proclamations, announcements and denouncements constantly traversing global media networks. 5On a daily basis, voices of the 'worthy' infect the globe with a refrain of US--centric neo--liberal anti--terror fervour ably demonstrated in George W Bush's rhetorical use of the idea of freedom in the recent US presidential election campaign: [W]e're pursuing a strategy of freedom around the world, because I understand free nations will reject terror.Free nations will answer the hopes and aspirations of their people.Free nations will help us achieve the peace we all want. 6hus speaks the 'coalition of the willing' and its singular Axis of Right--eousness.God forbid straying from the path of the worthy, for this would be to reject the only form of 'freedom' proffered by Empire.The refrain of the Right--eous effects a consolidation of milieus (the War on Terror and the neo--liberal economic program) and a consolidation of time--space (the terror-torialisation of globalisation).Affective in nature, the brand of Empire being peddled by the current reign of the Right--eous is a result of the neo--conservative conjunctive synthesis of religious commitment with politico--economic faith. 7Hell hath no fury to compare with those that populate the assemblages produced by post--9/11 reactionary, paranoid--fascist desire.
Henry Giroux isolates the deceit at the heart of contemporary US democracy when he writes: Bush's innocent posturing, wrapped as it is in the righteousness of the rhetoric of anti--terrorism, also provides a massive diversion from addressing those political issues at the heart of what it means to measure the reality against the promise of a substantive democracy. 8t in Means Without End, Giorgio Agamben predicts such a situation when he claims that politics 'seems to be going through a protracted eclipse' and 'appears to be in a subaltern position with respect to religion, economics, and even the law'.To the extent that politics 'has been losing sight of its own ontological status', he argues, 'it has failed to confront the transformations that gradually have emptied out its categories and concepts'. 9Part of a strong legacy of Italian political theory, this diagnosis echoes the emphasis Antonio Gramsci placed on assessing the precise and particular form taken by present conditions.Failing to pay attention to the changing features of the political landscape severely weakens potential strategies for challenging its composition.A conjunctural emphasis is therefore integral to an effective politics. 10e three domains Agamben sees as thwarting our categories and concepts for politicsreligion, economics and the law-find convenient coherence in the War on Terror.What is specific and historically different about the post--9/11 environment is that it combines an almost pre--modern religious fervour with the corporate might and sovereign power of a postmodern Empire.This nexus is the unspoken triad currently assuring the hegemonic position of the neo-conservatives.Their continued unspoken conflation and interrelatedness affects a seamlessness such that religious, economic and legal objectives can be simultaneously secured.This articulation might best be described as a discourse of 'Right--eousness', a term that acknowledges the conservative religious conviction underpinning what is also an economic and legal regime.In this paper we want to suggest that, within this otherwise smooth process, the figure variously described as the 'unlawful', 'illegal' or 'enemy' combatant provides a valuable opportunity, because it is a rare slip in the dominant discourse of terrorism.It emerges from the political and legal vacuum of a conjunctural shift-a moment when residues of a previously hegemonic formation continue to influence our perception of what's happening in the present, despite the new conditions we find ourselves in.Today, these conditions include the highly dubious and reactive legal process made possible when war is waged via religious rather than state--based loyalties.We will venture that the unlawful combatant is a model for interventions that might re-articulate the current conjuncture in more humane and grounded terms, terms that trouble the polemics, abstraction and dubious leap of faith constituting a Holy War.But before we reach this conclusion, some more detail of this new political terrain needs to be sketched.

-US EXCEPTIONALISM IN THE SOVEREIGNTY OF EMPIRE
The constitution of sovereignty is by way not only of a historical document (the Constitution of the United States of America) but also of the specific attributes of the biopolitical sovereignty-machine of Empire that work to produce a politicised human life. 11Antonio Negri and Michael Hardt argue that with the withering of civil society the logics of subjectification once confined to institutions (the school, family, hospital, factory and so on) have been let loose across the social. 12A singular sovereignty--machine operates across a number of milieus, consolidating populations biopolitically.Politics ceases to be a space of contestation but is concerned with the continual reorganisation of a single biopolitical order: Empire.Not all actualisations of the sovereignty--machine necessarily belong to all milieus, yet every actualisation of the sovereignty-machine resonates with other actualisations so that there is a biopolitical consistency across all milieus that it populates.Consistency does not lead to social equivalence, far from it.The production of social life is the reproduction of already existing asymmetrical social relations.
One criticism of Agamben has been for the manner in which 'he develops the Foucauldian paradigm of biopolitics without focusing on the specific economic rationality of biopolitics'. 13He focuses on the limit case of the politicisation of life-bare life-reducing the entire spectrum of less 'opaque' examples (biological life, sexuality, and so on) to the status of 'avatars'. 14amben's emphasis on the limit case of the concentration camp can be enhanced with a broader focus on how such biopolitical relations are enacted and reproduced within culture, and it is the beginnings of this wider project that we seek to offer in this paper.
The refrain of the Right--eous is the term we are giving to the territorialising expression of US exceptionalism within Empire's sovereignty--machine.The rise of the Christian Right within US politics, the perception of laissez--faire capitalism as representative of a 'natural state' of humanity and the colonising function of the US war--machine all signal the multiplicative effect required for producing a stability of biopolitical form that is singularly repeated across different milieus. 15Further dimensions of this process include the ideal of the free market being upheld with religious fervour, and jingoistic nationalism as the popularist motor cause of imperialist colonising expeditions and government, rather than the administrator of politics, gradually becoming the vehicle for faith--based interests.At the extreme end of such developments, the religious Right can demand that the juridical order be interpreted according to faith rather than in good faith (with fidelity to the original intention of legislation). 16he inverse to the radical dehumanisation and politicisation of life highlighted by Agamben as belonging to the model of the camp is the reactionary humanisation produced by US exceptionalism within the sovereignty--machine of Empire. 17The distinction between the 'normal' subsumption of bare life to political discourse can be inverted to become a horizon that is continually displaced across the economic, religious and juridical milieus.The indiscernibility of life from politics in the limit example of the concentration camp becomes a qualitative discernibility of Right--eousness within the everyday biopolitical reproduction of the social.The reactionary desire of the Right--eous assembles heterogeneous elements across any number of milieus, forming a specific plane of consistency that transforms every contestation into a state of emergency.A return to politics, then, requires that these actualisations of the generalised state of exception be depotentialised. 18The War on Terror is the limit case for the transformation of a political contestation-legitimate or not-into the depoliticised terrain of the Right--eous biopolitical reproduction of the social.
-NO CAUSE, JUST EFFECTS: VIRTUAL TERRORISM As Paul Virilio notes, while the Clinton administration downplayed its reaction to the Oklahoma bombing and depotentialised the social efficacy of the terrorist threat, the Bush administration instead chose to promote the event of 9/11, tending a paranoid desire and the 'evental lacuna' in the juridical order: Hence the tragedy is not over, … hence the war on terror must continue, hence the need to gloss over everything that relates to internal politics, including the prodigious scandals that are part and parcel of the miasma, and that are part of all the hocus--pocus we have to put up with in the media.All this, instead of taking a lesson from Clinton.Instead of jumping on his plane after the first attack in 1993 on one of the towers, Clinton let the thing go, he smothered it.In this instance, he followed McLuhan's advice: if you don't want a catastrophe, pull the plug.In other words, prevent the media from dwelling on the event too much. 19rilio argues that the Bush administration always had a choice in its response to 9/11.The event offered a chance 'to care about the world the way it needs to be cared for'.Instead, in a simplistic and brutal reaction, war was waged: 'the most out--dated way to handle an event of this magnitude'. 20The Bush administration sought not to depotentialise the social efficacy of the terrorist acts, but to use them to promote the alleged efficacy of their own actions, including those that constitute the so--called 'coalition of the willing'.
Terrorism's haunting presence has gathered such political usefulness for leaders in the West that we are now suspect to a complete ideological closure over what the term in fact means.As Stuart Hall and others have demonstrated, when a governing bloc successfully achieves ideological closure over a word, there is no way to understand or seek to change the historical factors behind it (in the manner Gramsci prescribed). 21The more a cause--and--effect explanation for terrorism is avoided, the more abstract it becomes and the more 'impossible' any reaction to it can also become. 22A literally senseless cycle develops where any potential threat to the state can be co--opted into the same abstract battle.Right now, as leaders clamour to describe their contrasting regional concerns within the vote--pulling vocabulary of terrorism (the only vocabulary, apart from religiosity, that George W Bush appears to have mastered), we lose sight of the fact that 'International terror is not an "ism".It is a criminal tactic of publicity seeking for a cause, one to which the West seems astonishingly vulnerable'. 23As Judith Butler also recognises, the terror tag is so attractive for political leaders because it evacuates the possibility that an identifiable grievance might underwrite individual acts of dissonance. 24e terror label also fits the political schema Agamben outlines insofar as Western leaders choose to maintain a constant state of emergency. 25This maintenance is their sole remaining purpose and claim to legitimacy, Agamben argues, asking: 'How could we not think that a system that can no longer function at all except on the basis of emergency would not also be interested in preserving such an emergency at any price?' 26 Condemned as we are to be alert if not alarmed, the War on Terror exhibits this state of emergency only too well.
In this 'war' the terrorist label domesticates the very real threat to the sovereignty--machine of Empire posed by the multitude.If the power of Agamben's 'whatever singularities' lies in their capacity to evade labelling or recognition by the state, at the moment the various residual state-based actualisations of Empire appear quite content to recognise terror. 27As an explanation for all that's wrong with contemporary politics it is used in the widest of genres and contexts to the point of hyperbole and contradiction.Witness the editorials in Moscow following the Beslan schoolyard killings: 'We have never before had to undergo such a massive wave of terror.These are no longer isolated attacks by terrorists.This is a real terrorist war.' 28 Terror, terrorist, terrorism-the refrain of the Right--eous has organised a home in the USA, but it's a home many others seek to inhabit given the 'comfort' it affords.And what this strategy of recognition suggests is that the politics of the 'virtual' summoned by recent Italian theory does not always or even necessarily belong on the Left.What's happening in Iraq or indeed Russia seems not only a theoretical vindication of Agamben and Hardt and Negri but also a clear flipside to the 'desirable' form of radicality sanctioned by their work.The terrorists themselves are not the flipside, but the people of those nations supporting the 'coalition of the willing' (or 'assemblage of the Right-eous').Instead of the real ontological 'common' between a multiplicity of peoples uniting them into the sociological realisation of shared antagonisms, they are instead assembled into a nation of shared reactionary desire. 29e 'War on Terror' remains successful because it has found a way to define a politics of the multitude-albeit a particularly vicious and anarchic one-in terms that sustain Empire and expand the territory of the Right--eous. 30It's not in terrorists' interests to have their causes lumped in to one blanket category.Those given the label are denied specific recognition as radicals supporting an actual cause, no matter how vague or abhorrent the cause may be.
Moreover, the very governments and administrative policies that are the source of their violent grievances actually appear to be sustained by their acts (the bombing of the Australian embassy in Jakarta is another instance of this).The word terrorism now has a consequence all of its own, without reference to any actual event or political tactic.As long as this hegemonic articulation continues, as the song goes, we remain condemned to sing along to the 'United States of Whatever'. 31

-REACTIONARY LAW: THE FACELESSNESS OF FEAR
During the preliminary hearing into the case of Australian and alleged unlawful combatant David Hicks, no pictures or audio from the trial were allowed. 32Few journalists or observers were admitted, and those that were faced tough restrictions.The only visual evidence of the military commission was the traditional court portrait.Yet the artist had particular instructions too.All prisoners had to be drawn generically so that they could not be identified.Military spokesman Colonel David McWilliams explained to journalists the necessity of these procedures to remain in accordance with the Geneva Convention (for example, the identities of prisoners had to be protected to avoid public ridicule).At the time, ABC journalist Leigh Sales asked: This exchange is a salutary example not only of a state intellectual in the sense Gramsci described, but of how in the current conjuncture their function is to assert the expectation of law rather than to demonstrate that existing laws are being carried out.In this power configuration religious, economic and legal interests hold equal weight; to question whether the law is carried out is to question the moral as much as the legal integrity of the US military.McWilliams offers a selective representation of right process as reassurance and evidence of right process, signalling the force of law working within the suspended juridical order of the state of exception. 33Such a move is intended to appeal to our residual desire that justice and a fair trial are worthwhile and still binding ideals.Watching the television news feed from the hearing, this becomes all the more clear: commissioners in the portraits are left with blank faces (again for security reasons).
By this stage what exactly is it that the court artist purports to represent?What is it about these pictures, which show a room full of faceless men, that is supposed to demonstrate legitimacy and right process?The commissioners' desire to remain faceless in the depictions when we actually do know their names is really only fitting.To the observing public, it doesn't matter who they are.They are simply the faceless conduits of the force--of--law in the state of exception.In the pictures sanctioned for distribution, the soldiers' uniforms are the only signifiers left, the only signs that don't threaten ambiguity or arbitrary interpretation.They only ever mean the force and sanction of Empire.
In these hearings, the court illustrator has the function of signifying some actual form of right process in the legal vacuum underwriting these military commissions.But what's so objectionable is that generic conventions have now fully replaced the actions earlier intended to be mediated.The expectation of justice continues as a given, but only because 'no one has announced its death'. 34Evidence now amounts to faceless gestures.
-BEYOND BARE LIFE, BEYOND HELP At its limit, Agamben argues, the politicisation of bare life is exemplified by the concentration camp.The tendency towards this limit does not equal the horror of the concentration camp, but presents a clear qualitative expression of the political conditions of life.For Agamben, 'the camp is the fourth and inseparable element that has been added to and has broken up the old trinity of nation (birth), state, and territory'. 35Tracing this development to the state of exception introduced by Adolf Hitler during the Third Reich, which led Germany into a paradoxical state of 'legal civil war', Agamben draws a parallel between the status of persons held in Guantánamo Bay's Camp X--Ray and the Jews held in the Nazi camps 'who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews'. 36The two camps share this suspended juridical order: the 'military order' issued by George W Bush on 13 November 2001 authorised the 'indefinite detention' of non--citizens suspected of being involved in terrorist activities. 37The ambivalent legal status of Camp X--Ray placed detainees in a juridical limbo '[i]nasmuch as its inhabitants have been stripped of every political status and reduced completely to naked life'. 38In the figure of the 'unlawful combatant', 'bare life reaches its maximum indeterminacy'. 39r those concerned about human rights, Agamben urges a particular response to this form of incarceration: The correct question regarding the horrors committed in the camps … is not the question that asks hypocritically how it could have been possible to commit such atrocious horrors against other human beings; it would be more honest, and above all more useful, to investigate carefully how-that is, thanks to what juridical procedures and political devices-human beings could have been so completely deprived of their rights and prerogatives to the point that committing any act toward them would no longer appear as a crime (at this point, in fact, truly anything had become possible). 40consideration of the juridical measures that allow the camps to 'legally' emerge must therefore be separated from the question of the biopolitical constitution of bare life that reaches its apotheosis in the figure of the camp detainee.As the footage from Hicks's preliminary hearing makes clear, however, there is something troubling in Agamben's directive when juridical procedures can be investigated and revealed, but with little effect.In the case of Camp X--Ray, it is the nostalgic ideal of 'due' or right process that allows these proceedings to take place with any legitimacy, when what we are actually witnessing is the inauguration of Right--eous process.And as cultural studies scholars we suggest that it is not enough to pay heed to the exemplary model of the camp and the legal innovations it gives rise to, that this must be accompanied by rigorous analysis of examples from popular culture that reinforce and act as support mechanisms for hegemonic articulations.Camp X--Ray articulates the religious, economic and legal interests of neo--conservatives in the sense that the freedoms once enshrined in global initiatives such as the Geneva Convention become the building blocks from which the legal non--status of the unlawful combatant can be produced.These enemies are not considered human so much as further opportunities to justify US exceptionalism.They are empty vessels for evil, irredeemably under the sway of satanic forces, for no other human subject is permissible except the neo--(liberal) Christian subject. 41e Right--eous Manichean frame for this battle ('you are either with us or against us') absolves the need to consider the circumstances of each prisoner's case or the rehabilitation that a more confident society could afford.Representations of the juridical procedures inaugurated in the Guantánamo Bay military commissions bear witness to the 'force--of--law' in action, not on the bodies of detainees themselves, but as a Right--eous exercise that gathers momentum through global media circulation.Any injustice at the core of the military commissions is hidden in plain sight of the flaccid, if not complicit, global media lens.
-LAW: WHAT IS IT GOOD FOR?
Law isn't created through declarations of human rights.Creation, in law, is jurisprudence, and that's the only thing there is.So: fighting for jurisprudence.That's what being on the left is about.It's creating the right.

Gilles Deleuze 42
While defenders of the military commissions claim that those under trial shouldn't be rewarded because they have violated 'the laws of war', their fabricated status as 'illegal combatants' is an opening in the otherwise overdetermined interests of the Right--eous.Just how the laws of war are relevant in circumstances where a war has been declared illegally is the essence of a contradiction.There is little recourse to the idea of an illegal combatant when, no matter whose side God is on, war itself is conducted without sanction.In our efforts to resist the refrain of the Right--eous it's important to seize these opportunities that do not buy into the same exceptionalist abstraction and legal vacuum crucial to its success.The very contradictions smoothed over by hegemonic articulations offer tactics to confront those powers in the service of Empire.
At the moment the residues of what we expect from our legal and political system work in combination with those actual state powers that continue to exist.And while reactionary laws are enacted with speed and flexibility, their consequences-stasis, confinement, deferred and ambiguous process, inflexibility, torture-remain the same.Mamdouh Habib, the other Australian that was held in Guantánamo Bay, could only speak to his family on speaker phone and in English.When Terry Hicks wrote to his son in prison, the words 'All our love' were always censored. 43The significance of this is that no matter how exceptional the case for war, the concrete legal statutes accompanying it (the Homeland Security Bill or Australia's anti--terrorism legislation, for instance) mean that any of us who stand in the way risk the consequences of the 'enemy combatant' label.Any resistance to Empire and US exceptionalism becomes territorialised by the refrain of the Right--eous.
In light of present circumstances, Deleuze's call for creationism in law appears somewhat utopian.An emphasis on jurisprudential axiomatics seems difficult in the context of a deliberately suspended juridical order and the self--legitimating grip of the refrain of the Right-eous.Political directives currently available, including those shaped by recent Italian theory, struggle to cope with the religiosity underpinning justifications for the War on Terror.When the reactionary desires of the multitude were resuscitated by neo--conservatives post--9/11, the population was mobilised to accept extra--juridical motives.The paranoid 'reactionary' justice of the Right--eous manipulated the deterritorialised molecular components of the law milieu, reassembling them to reflect Right--eous imperatives within the state of exception.It is the neo-conservatives that are following Deleuze's prescription to the letter, for they are surely creating the rights of the prisoners held in the prison camp of Guantánamo Bay.Such a course of action is 'justified' in the feedback loop that creates the 'unlawful' status of alleged combatants.The moral authority of the Right--eous voice speaks the paradox of US exceptionalism: the legitimating of illegitimate acts that produce the 'lawfulness' of the 'unlawful' status of enemy combatants.
Leigh Sales: The United States Government ignored the Geneva Convention to establish this entire detention facility, so why would you quote the Geneva Convention now?David McWilliams: The Geneva Convention has always been adhered to at Guantánamo Bay to ensure the humane treatment of people who are detained here.Leigh Sales: But their actual status as enemy combatants was designated so that they would not be afforded prisoner of war protections under the Geneva Convention.David McWilliams: Because they're not prisoners of war, they're enemy combatants.Leigh Sales: Can you see how it may look that the US Government adopts the Geneva Convention or cites the Geneva Convention when it's convenient, but chooses not to do so at other times?David McWilliams: The United States Government has applied the principles of the Geneva Convention to the detention of people here at Guantánamo Bay.