Law in Search of a Political Movement

On Wednesday, Human Rights Watch released a report stating that since 9/11 it has collected hundreds of allegations of detainee torture and abuse, implicating some 600 military personnel in acts of violence against 460 detainees. The numbers once again underscore the systematic nature of detainee mistreatment and the clear complicity of the civilian and military leadership in legitimating such practices. Among the various recommendations HRW makes, it calls for the prosecution of all individuals, regardless of rank or position in civilian leadership (that means you Rumsfeld), "who participated in, ordered, or bear command responsibility for war crimes or torture."

Like all efforts at legal redress such reports have their limits. In particular, they are unable to confront the political context in which military misconduct takes place. The greater problem isn't the single instance of torture by the soldier on the ground, but the war on terror's very logic, which justifies virtually all acts of state violence under the theory that the U.S. faces a permanent and global emergency. Merely prosecuting each legal violation won't in and of itself alter the political framework -- which perpetuates such violence and breeds a sense of collective insecurity. Simply put, legal methods are at root unsuited to addressing what is fundamentally a political problem.

Yet, this critique of legalism is only half the story. HRW in raising the sheer number of individuals involved in torture and the failure of both the military and its civilian supervisors to take any meaningful legal action, is actually hinting at the political problem. It's the war on terror itself which validates such complicity, and justifies the lack of any accountability. Yet, HRW and other legal organizations, by their very nature, are neither mass movements nor parties which can serve as a political opposition or represent popular constituencies. For their legal arguments to take on political significance, lawyers require social mobilizations, which themselves would do the hard work of questioning the logic of emergency and the securitized state.

It's only in the absence of oppositional politics that the limits of legalism become more pronounced. Under these circumstances, calling for prosecution can easily by coopted by savvy politicians into a way to scapegoat military personnel, while at the same time maintaining or even entrenching the prevailing status quo. The problem then for HRW and for the rest of us is that its reports are a defense of law without any popular mobilization to fuse legality with politics -- to make legal action symbolic of a commitment to political change. It's this fusion that can make law an instrument of popular power and place legal argument in the service of authentic reform.