War of terror: Legal colonialism reincarnated

Did 9/11 really open a ‘new’ chapter in American history?

People look at 'America's Response Monument', a statue commemorating Special Operations forces who fought during the first stages of the Afghanistan war and the Global War on Terror in New York City on August 30, 2021 [Reuters/Brendan McDermid]

In the canon of 9/11 anniversary essays, “newness” is a perennial theme: the “unprecedented” changes spawned by an “unprecedented” threat.

Commentators mourn America’s “loss of innocence” – erasing the blood of centuries of settler colonisation, imperial expansionism, and enslavement from the United States’ historical slate.

Pundits decry the extension of mass surveillance and erosion of civil liberties as “[Osama] bin Laden’s victory” over American freedoms – scrubbing the long genealogy of policing, surveillance, and counterinsurgency measures wielded to repress Indigenous, Black, and Latinx dissent in the US.

Writers lament the transformation of planes from symbols of “freedom and adventure” into weapons of “fear and suspicion” – forgetting that the use of planes as instruments of terror was not invented by al-Qaeda in 2001 but by Italian, French, and British colonisers in Libya, Morocco, Iraq, and other laboratories of colonial violence in the early 1900s. The use of “air policing” and bombardment to exert mastery over the colonised presaged the physical and psychological ravages of drone warfare today.

The 9/11 narrative of radical historical rupture is sustained by radical historical erasure – obscuring the continuities between the excised colonial past and the sanitised colonial present.

In fact, the supposedly new paradigm of post-9/11 war resembles what military historian John Grenier identified as America’s “first way of war”: the totalising assault on Indigenous nations, lying at the genocidal foundations of the American state. From the “Indian Wars” to the “War on Terror”, the assertion that the targets are too “uncivilised” to obey the (Eurocentric) laws of war has been used to unleash extraordinary violence by the “civilisers”.

In its infamous series of War on Terror legal memos, the US government’s Office of Legal Counsel (OLC) invoked an impressive array of colonial precedents from around the world: from the Indian Wars and US military occupations of the Philippines and Cuba to authorise the deployment of the military to fight “terrorist activities” within the US; from British colonialism in Kenya, French colonialism in Algeria, and apartheid South Africa to strip captured fighters of Geneva Convention rights; from the Indian Wars again, to legitimise the kangaroo court of the Guantanamo military commissions; from Britain’s colonial project in Ireland and Israel’s in Palestine, to legalise torture cloaked as “enhanced interrogation”; and from Israel again, to deny captives access to the International Red Cross.

In Orientalist eyes, the use of precedent in Islamic legal traditions (taqlid) has been pathologised as yet more evidence of Muslims’ servile subjugation to the past. On the other hand, Western common law’s adherence to precedent – a vehicle for the continuing reproduction of colonial reasoning – is celebrated as a hallmark of its exemplary rationality and justice.

The US Army’s Field Manual for post-9/11 counterinsurgency (COIN) openly proclaims that it “draws upon colonial teachings and the US Marines’ code of conduct for occupying Latin American nations”. The laudatory introduction was written by the head of Harvard’s human rights centre – human rights and colonial imperatives functioning as two sides of the same COIN.

First on the manual’s recommended reading list of “classics” is Small Wars, by 19th-century British major general, Charles Callwell. Originally subtitled A Tactical Textbook for Imperial Soldiers, it purportedly “provides lessons learned [from Callwell’s military experiences in Afghanistan and South Africa] that remain valuable today”.

One wonders precisely what “lessons” are meant to be gleaned from Small Wars, which is replete with such observations as “all orientals have an inborn love of trickery and deception”, “the Red Indians have won an evil notoriety by their duplicity and craftiness”, “in Asia he is the master who seizes the people pitilessly by the throat”, and “fanatics and savages must be thoroughly brought to book and cowed or they will rise again”. In total, it contains more than 100 references to “savages”, “barbarians”, and the “uncivilised races”.

Of course, in the contemporary counterterrorism lexicon, “savages” are no longer officially referred to as “savages”. Instead, new terms such as “unlawful enemy combatants” have been devised, to justify expulsions from the protections of international humanitarian law.

Similarly, societies are no longer overtly branded as “uncivilised” to rationalise imperial aggression, invasion, and overhaul. Instead, the targets for such interventions are now described as “failed” states, or “unwilling or unable” to eliminate threats harboured within. The “unwilling or unable” doctrine – popularised in the War on Terror – was first advanced by the US and Israel in the 1970s, to attempt to accord a patina of legality to their extraterritorial exercises of military force.

“The very process of asserting newness [in the wake of 9/11] is a key political manoeuvre that allows proponents of radical international reform to justify, more successfully than was previously possible, many of their pre-existing imperial ambitions,” legal scholar and UN expert Obiora Okafor observed.

For example, European colonial jurists such as 16th century Francisco de Vitoria – now memorialised as a liberal defender of human rights – argued that in the so-called “new world” of the Americas, “permanent” total war was “necessary to secure peace”; centuries before George W Bush made “humanitarian” aggression great again.

Ironically, the appeal to newness is itself an old imperial tactic, Okafor reminds: “Newness and difference were pivotal elements in the absurd series of sixteenth and nineteenth century legal manoeuvres that ultimately led to foreign Europeans conferring on themselves the international legal right to coercively occupy and govern lands [in the Americas, Africa, and Asia].”

While the terminology has been rebranded and the legal framework revamped, the underlying dynamic of differentiation and domination remains. As in previous colonial periods, the dominated are not simply excluded from law, but included in order to be subjugated.

To label this regime of terror as “war” is misleading, since war connotes a situation in which both sides are legally entitled to use violence and are vulnerable to violence in return. Rather, as in the colonial slaughter fields and torture chambers of decades past, what imperial powers seek is a one-way licence for brutalisation and control.

This is manifest in the US’s demonisation and prosecution of Muslim fighters, such as former Guantanamo detainee Omar Khadr, as “terrorists” for killing US soldiers – legitimate military targets, under the international laws of war. In contrast, the prolific killing of Afghan, Pakistani, Somali, and Yemeni civilians by US forces is routinely exonerated, written off as “collateral damage” or “enemies killed in action” if disclosed at all.

“The WAT [War Against Terror] represents a set of policies and principles that reproduces the structure of the civilising mission,” legal scholar Antony Anghie warned in his foundational book, Imperialism, Sovereignty and the Making of International Law. “It is precisely by invoking the primordial, imperial structures latent within international law that this supposedly new initiative seeks to disrupt and transform existing international law … relying for its power on a very ancient set of ideas – regarding self-defence, humanitarian intervention and conquest.”

Yet colonialism and imperialism are perpetually cast as an aberration: a response to “their” inherent violence, never a manifestation of “ours”. Colonial violence has been largely expunged from legal histories, despite its central formative role, and marginalised as “small wars” – “thereby managing to dismiss what has in fact been by far the most common form of warfare in the modern world”, political theorist Mark Neocleous points out.

Historical “fathers” of international law such as Francisco de Vitoria, Hugo Grotius, Emer de Vattel, Henry Dunant, and Friedrich von Martens have been laundered of their colonial entanglements and lionised; so too are the current-day architects of imperial atrocities being cleansed of their infamy in the present.

OLC torture memos author John Yoo is now a law professor at a prestigious school, his boss Jay Bybee is an appellate court judge, and Alberto Gonzales, the White House lawyer who embraced their tortured logic, is a law school dean. Meanwhile, liberated survivors of the Guantanamo torture camp are left struggling with physical and psychological disabilities, and scraping by on the poverty line; all of their efforts to seek reparations from US government officials have been dismissed by US courts. Empire means never having to say you’re sorry.

What we are told to “never forget” and what we are made to “always forget” are two sides of the same operation of power. And so the colonial present continues, inscribing each new chapter of violence as if it was the first.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.