Georgia State University College of Law Reading Room Faculty Publications By Year Faculty Publications 1-1-2008 Colonial Presumptions: The aW r on Terror and the Roots of American Exceptionalism Natsu Taylor Saito Georgia State University College of Law, [email protected] Follow this and additional works at: https://readingroom.law.gsu.edu/faculty_pub Part of the International Law Commons, and the National Security Law Commons Recommended Citation Natsu Taylor Saito, Colonial Presumptions: The aW r on Terror and the Roots of American Exceptionalism, 1 Geo. J. L. Mod. Crit. Race Persp. 67 (2008). This Article is brought to you for free and open access by the Faculty Publications at Reading Room. It has been accepted for inclusion in Faculty Publications By Year by an authorized administrator of Reading Room. For more information, please contact [email protected]. Colonial Presumptions: The War on Terror and the Roots of American Exceptionalism NATSU TAYLOR SAITO* INTRODUCTION Shortly after the attacks on the Pentagon and the World Trade Center, George W. Bush, the forty-third president of the United States, said in an address to Congress, "Either you are with us, or you are with the terrorists ....This is not, however, just America's fight. And what is at stake is not just America's freedom. This is the world's fight. This is civilization's fight."' The resulting "war on terror," both a military and an ideological struggle, has evolved into a conflict with neither geographi- cal boundaries nor a clear definition of victory, and has become a "global enterprise of uncertain duration."'2 Identified enemies have included Osama bin Laden and the al Qaeda network, the Taliban government of Afghanistan, the state of Iraq and its president Saddam Hussein, an "axis of evil" consisting of North Korea and Iran as well as Iraq, radical Islam, the hundreds of men and boys of several dozen nationali- detained at the U.S. Naval Base at Guantinamo Bay, Cuba, and ties indefinitely 3 select U.S. citizens declared without proffer of evidence to be "enemy combatants." One thing is clear, however: this shape-shifting war is the United States' justification 4 for the promotion of a "new paradigm" of international law. * © 2009 Natsu Saito. All rights reserved. Natsu Saito is a professor of Law at Georgia State University College of Law. She is grateful to Tiffany Bartholomew and Akilah Kinnison for their research assistance, to the Georgia State University College of Law for its support of this research, to her colleagues Andrea Curcio, Nancy Ehrenreich, and Jonathan Todres for their feedback, and to the scholars who laid the foundation for this work, especially Antony Anghie, Ward Churchill, and Robert A. Williams, Jr. Many thanks also to the editors of the Georgetown Modern Critical Race Perspectives journal and the organizers of the journal's inaugural symposium, where aversion of this article was presented. The ideas presented herein are explored in further detail in NATSU TAYLOR SAITO, WE HAVE MET THE ENEMY: AMERICAN EXCEPTIONALISM AND SUBVERSION OF THE RULE OF LAW (forthcoming 2009). 1. George W. Bush, Presidential Address to a Joint Session of Congress (Sept. 23, 2001), in WE WILL PREVAIL: PRESIDENT GEORGE W. BUSH ON WAR,TERRORISM, AND FREEDOM 14-15 (National Review ed., 2003). 2. The White House, Introduction to THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA (2002), available at http://www.whitehouse.gov/nsc/nss/2002/index.html [hereinafter NSS]. 3. On the shifting definitions of the enemies at issue, see Hendrik Hertzberg, War and Words, THE NEW YORKER, Feb. 13, 2006, available at http://www.newyorker.com/archive/2006/02/13/060213ta-talk_ hertzberg. On the detentions of individuals, see generally DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ON TERRORISM (2003); Joan Fitzpatrick, Rendition and Transfer in the WarAgainst Terrorism: Guantdnamo and Beyond, 25 LoY. L.A. INT'L & COMP. L. REV. 457 (2003). 4. Thus, for example, in a January 25, 2002, memo to the President, White House Counsel and future Attorney General Alberto Gonzales noted Bush's announcement that "the war against terrorism is a new kind of war," and stated that "this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." Stephen P. Marks, Branding the 'War on Terror- ism: Is there a 'New Paradigm' of International Law? 14 MICH. ST. J. INT'L L. 71, 89 (2006) (quoting Memorandum from Alberto Gonzales, Att'y Gen., to George W. Bush, President, United States of America, (Jan. 25, 2002). President Bush also referred to this "new paradigm" in a February 7, 2002 memo in which he GEO. J. L. & MOD. GRIT. RACE PERSP. [Vol. 1:67 According to President Bush, this new paradigm was "ushered in not by us, but by terrorists" and "requires new thinking in the law of war." 5 In the years since 2001, the United States has, in fact, engaged in numerous practices generally recognized to be at odds with both the laws of war and international law more generally.6 Often citing other parties' failures to comply with the global rule of the law, U.S. officials have exempted themselves from adherence to existing norms, sparking debate as to whether the American stance is simply hypocritical or actually necessitated by the changing face of global terrorism.7 One way of analyzing this issue is to consider current arguments proffered in the war on terror in light of the history of the United States' selective self-exemption from otherwise applicable international law and the invocation of an exceptional status to justify this practice.8 To the extent that current policies and their stated rationales comport with a consistent historical pattern, one .can reasonably conclude that their impetus is not simply a new and imminent threat, but more deeply rooted. In this essay I suggest that contemporary American policies and practices are entirely consonant with the policies that have been implemented throughout U.S. history, and that the United States has both invoked and exempted itself from international legal standards since its founding. Furthermore, the reasoning behind this approach is, I believe, firmly rooted in the arguments, both moral and legal, that have been utilized for centuries to justify European colonial expansion. If this analy- sis is accurate, it implies that in order to assess (much less change) contemporary U.S. practice, we would have to consider not only the current state of world affairs, but also the validity of the underlying worldview. This, of course, is a project far beyond the scope of this essay. My purpose here is simply to articulate some of the pre- *sumptions underlying the rationale for the current war on terror, and to point out some of the historical parallels to the arguments for American exceptionalism ad- vanced during the settlement of this continent, the establishment of the American republic, and several wars waged by the United States. This essay proceeds as follows: Section I outlines some of the underlying precepts of the war on terror, noting that these presumptions reflect a paradigm in which states, "Our Nation recognizes that this new paradigm-ushered in not by us but by terrorists-requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva." Memorandum from George W. Bush, President, United States of America, to Richard B. Cheney, Vice President, United States of America, et. al.,(Feb. 2, 2002), available at http://www.gwu.edu/nsarchivl NSAEBB/NSAEBB 127/02.02.07.pdf. 5. Marks, supra note 5, at 89 (quoting Memorandum from George W. Bush, supra note 5, at 1). 6. See infra notes 42-52 and accompanying text. 7. See, e.g., Aya Gruber, Who's Afraid of Geneva Law?, 39 ARIZ. ST. L.J. 1017, 1082 (2007); Leila Nadya Sadat, ExtraordinaryRendition, Torture, and Other Nightmares from the War on Terror, 75 GEO. WASH. L. REV.1200, 1247 (2007); Joan Fitzpatrick, Sovereignty, Territoriality,and the Rule ofLaw, 25 HASTINGS INT'L & COMP. L. REv. 303, 303-06 (2002). 8. For more related analyses of American exceptionalism in the context of international law, see Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 1-26 (Michael Ignatieffed., 2005) (breaking the concept down into American exceptional- ism, legal self-sufficiency, and double standards); Harold Hongju Koh, America 'Jekyll-and-HydeExceptional- ism, in AMERICAN EXCEPTIONALISM 111-43 (Michael Ignatieff ed., 2005) (distinguishing four components which he identifies as distinctive rights, different labels, the "flying buttress" mentality, and double standards). 2008] AMERICAN EXCEPTIONALISM Western civilization is the benchmark for human progress, and the United States is the model of that civilization. Section II summarizes some of the clearest examples of U.S. practices that have deviated from international norms, as what has been termed "a distinctly American internationalism" is implemented in the context of the war on terror.9 Section III briefly considers how the principles, or "values," invoked in the war on terror informed both the vision and the legal rationales of the 17th century English settlers as they established the colonies that would become the United States. Section IV addresses the extension of these presumptions and the arguments for American exemption from then-prevailing international law as the colonists' justifica- tion for establishing an independent state in the 18 h century. Select examples of how these arguments were used in consolidating and expanding the territorial base of the country in the 19 th century are provided in Section V, and Section VI addresses the extension of the exceptionalist rationale to U.S.