Abstract
This article traces certain concerns of natural justice in the thought of Nasser Hussain through the lens of several of Hussain’s writings. The article’s first section examines the 1966 privacy case, Griswold v. Connecticut, as a paradigm of certain natural law concerns which become important in Hussain’s work on the Universal Islamic Declaration of Human Rights. The second section examines a chapter of Hussain’s book The Jurisprudence of Emergency, on nineteenth-century Indian and British legal history, in the context of relevant strands of thought from previous eras, chiefly Montesquieu and Thomas Hobbes; the analysis asserts that the primitive or “natural” portrayals of colonial populations constructed by European legal-political ideologies inflect natural-law thinking in a way which sheds light on the concerns of the article’s first section. The third section moves to Hussain’s concern with recent American use of unmanned aerial vehicles (drones) in the Middle East, tracing their history through the postcolonial era to render broad conclusions about how some of Hussain’s larger natural-justice concerns might be addressed.
When this article was first written, the conference at which it was presented – “Thinking with Nasser Hussain” – was being called a festschrift, an occasion for some brief papers given in honor of Hussain’s life and work, following his passing in 2015; shortly before that gathering, it was suggested instead that, since a festschrift conventionally honors someone in person, the occasion might better be called a gedenkenschrift: as the actual title of the conference made explicit, a chance to think with Hussain. It was this that I think all of us on that occasion found so valuable, the idea that even when we can no longer be in someone’s company, we can think not only of them but with them, especially if, as in Hussain’s case, this person has left us so much to spur the endeavor. There have already been other forward-looking intellectual tributes to Hussain and his work, but our gathering at Amherst, where Hussain lived a life that perhaps he never expected to, presented a special opportunity. Working through that conference and preparing the present article from its fruits has been, for me, an occasion to really start to get to know Hussain’s writing in the process of thinking with those who know him and his work best.
This article will start, then, with a brief commentary on a few pieces of language in a case that, as far as I know, Hussain did not work on, but I want to carry the point a little way into one or two of the areas in which he was so active. My point about this language, in Griswold v. Connecticut (1965), may seem minor, but I think it may tell us something more about what Hussain’s work tries to tell us. 1
I
In Griswold, Justice Douglas’ majority opinion invokes H.L.A. Hart’s old language of the “penumbra” 2 in indicating the reach of liberty of conscience: “[T]he First Amendment,” he says, “has a penumbra where privacy is protected from governmental intrusion,” 3 and he goes on to enumerate the “penumbral rights of ‘privacy and repose’.” 4 Justice Harlan uses the same language in his concurrence, 5 but then shortly – and actually in a qualification of the majority opinion – refers instead to the “radiations” of the Bill of Rights’ protections. 6 Justice Douglas, with similar connotations, uses the word “emanations,” 7 as does Justice Black in his dissent. 8
Insofar as the penumbral terminology of shadow typically characterizes positivist approaches in some way (thanks to Hart), it might conversely be said that references to illumination – radiation, emanation – suggest (in one way) an opposite characterization of legal principles: laws illuminate circumstances themselves, perhaps, rather than shadowing them with the law’s own substantiality. There seems to be in such language a gesture toward law that judges each case anew on the merits it finds (even maybe unto ideas about the radical incommensurability of all cases), burnishing them at the same time with the quality of its own dignity and promise – rather than law that routinely applies and expands the reach of an ordering, consistent and preserving doctrine.
I am not arguing here that either conception has some superior moral or other claim, but I think that these two conceptions, weaving in and out of one another, can tell us more about what is at stake in a case about fundamental rights. Griswold, as a 1965 privacy case affirming the rights of married persons to make decisions regarding contraception – and consequently the rights of family planning organizations, medical practitioners, etc., to offer aid in such matters – was argued under the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment, as well as under the First; this is to say that the various arguments in the case offered enormous scope for debate about penumbral meanings versus specific, enumerated ones, about whether practices local to a certain state, or to a certain era of history and so on, had a federalized or indeed a wholly universalized legitimacy, either as a result of their traditional natural-law traits (often finding their best proxy in the Ninth Amendment’s invocation of “unenumerated” rights), 9 or as the result of positivist ties to due process, incorporation, etc.; and somewhat exceptionally, Griswold justices on both sides of that conventional antagonism ended up in ultimate agreement on the protection of marital rights and privacy 10 – though it is part of the richness of this case that it can be hard to entirely fix any one justice’s argument in this framework.
Already, this is a case in which Hussain would have taken an interest: sketching important congruencies between the 1981 Universal Islamic Declaration of Human Rights (IDHR) and other declarations of fundamental liberties (not least the United Nations Universal Declaration of Human Rights itself), Hussain writes, The claims of women’s human rights or Muslim human rights accuse the universality of the human of an incompletion even as they draw on its affective energy. … Indeed, we met each of these articulations on their way to another universality, understood either in terms of completion or a truer alternative.
11
In a parallel fashion, we find Justice Douglas maintaining that “without … peripheral rights, the specific rights” – i.e., those encompassed explicitly by constitutional law or precedent – “would be less secure,” 12 and that certain cases “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” 13 In other words, the particular provisions in fundamental law of the American constitutional type are always best understood, not simply as inevitably incomplete (as particular), but as, in Hussain’s phrase, “on their way” to remedying the perpetual incompleteness of the universal guarantees in a regime such as that of human rights. As such a universal promise, the “penumbra” in Douglas’ argument is not Hart’s ulterior territory lying beyond a moveable fence of antiformalist “intelligent decisions,” 14 full of various contingencies admitted or excluded on various bases, nor yet is it the comprehensive indeterminacy of legal interpretation which Hart discards, “that all legal questions are fundamentally those of the penumbra”; 15 neither is it that general vagueness which characterizes classical natural-law writing before Hobbes, which Lon Fuller rejected as inconsistent with the natural law tradition he sought to renovate, or which Justice Black reviles, in Rochin v. California, as “nebulous standards.” 16
Something else is gestured toward here; following Douglas, Goldberg even restrains specificity itself, the “misapplication of the well known maxim that an affirmation in particular cases implies a negation in all others.” 17 This fight for a different vagueness, for a penumbra beyond the term’s Hartian roots; for a shadow the boundaries of which do not simply change over time, but which also cannot always be charted or encompassed at any one time – indeed, may, like Heisenberg’s observed particles (which must surely include particles of light …), become impossible to fix entirely just when we seek to do so – this fight has important points in common with the efforts that Hussain underlines as the IDHR struggles with and against its predecessors to name (or not) the Deity as an authorizing, illuminating, natural-law force: “The problem …” says Hussain, paraphrasing Arendt, “was how to how to create lasting foundations without resort to foundationalist categories.” 18 Indeed, the question of deity at the moment of law brings us back once again, not to shadows this time, but to illumination, to the oldest associations of power and understanding with light, and of light with deity.
It would be interesting to sort out more of this language of light and shadow in relation to the received wisdom about the Griswold justices’ positivist or natural-law leanings, but also to reflect particularly on this elder association of natural law, and of radiated light – of the sun itself – with divinity and divine ordinance; that there must be some confusion between the positivist-versus-natural-law (or, very roughly, the doctrine-versus-merits) vectors is indicated by the fact that Justice Douglas actually invokes both idioms in the same sentence: “The foregoing cases,” he says, “suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” 19 – and indeed it is emanations of light which give rise to shadows … Do merits, then, lead to doctrine? Does natural law (as we have so long been told) shape positive law!
II
These considerations make me think – rather far afield, as it may seem for the moment – of Hussain’s care, in his book The Jurisprudence of Emergency, for the Foucauldian and Althusserian interpolations 20 which evolve in the colonial history of the writ of habeas corpus, of law which (to invoke some other language of the twentieth-century natural law debates) creates subjects – more than it illuminates or encompasses subjects that it discovers, or subjects who submit themselves to its discretion. 21 It might be tempting, I mean, to parse Griswold with regard to its own interpolations of married and unmarried partnerships (and not just individuals) as loci of privacy, as little unities which the state cannot compromise; where law must withdraw its shadowy reach, and yet must also dim its illuminating emanations, resolved that certain facts should be beyond the purview, or even the knowledge, of the courts. Hussain might have been tempted by this proposition as well, and yet these kinds of discernments come to life, already – and for Hussain, I believe, more vividly – precisely in a context like that of colonial India where, as Jon Wilson details at length, the imposition of the British Code of Civil Procedure on the population in 1858 marked only the start of a thorough, interpolating re-legalization of the nation, accelerated by various unrest during the 1870s: an abbreviated penal code largely aimed at consolidating British state power, a frenzy of other often rarefied legislation, codification and bureaucratization, and increased Indian access to the legal profession itself (these last two developments working in different ways both for and against the interests of many indigenous persons). 22
For the moment, though, I want to follow a broader cultural strand in Hussain’s book: in the chapter entitled “The Colonial Concept of Law,” we read Hussain’s account of how Montesquieu (whose views on the power of the marriage union
23
might well have influenced a Griswold justice or two) set the stage for debates about the rule of law versus despotical discretion in relation to particular times and places, India included. Indeed, we are immediately thrown once again into debates over specificity and universality: the “social descriptions” of different peoples and their natural political inclinations in The Spirit of the Laws, says Hussain, introduce Montesquieu’s famed sociological method, his avoidance of originary fictions of contract theory and the eternal provisions of natural law in favor of specific and observed conditions. … Montesquieu is in search of, as he himself makes amply clear, not particular laws but their general spirit, and he locates this essence in both the formal description and social context of each legal type.
24
In cases like that of India and the near East, then, Montesquieu was able “to suggest that despotism may well be a suitable form of government for those areas where one tends to find its prolonged existence,” 25 while at the same time lionizing European rule of law with the best of his early modern predecessors. In that vein, we might think back to Hobbes’ own take on despotical discretion in Leviathan; again, as Hussain notes, Montesquieu has left behind Hobbes’ contractarian thinking, and is waxing sociological in a way that Hobbes only does occasionally, as in his comparisons with the Americas of his day, where, for example, he says that those continents’ native inhabitants have no government at all, despotic or otherwise. 26 Never mind that what Hobbes describes as sovereign government (whether in a monarchical, democratic or other mode) would have been classified by Montesquieu as despotical only – in, as Hussain puts it, Montesquieu’s “all-too-familiar antinomy of fixity versus discretion, established law versus sovereign will” 27 – and indeed, we know that Hobbes is quite clear that his sovereign power is not subject even to its own law. 28 But it is also true that, had he been writing in Montesquieu’s time, Hobbes might have resorted to the example of subcontinental peoples rather than their American namesakes.
And yet the very fact that Hussain’s discussion juxtaposes the “naturalist” ethnographies of Montesquieu with (implicitly) the structures ordained by one of the godfathers of English natural law should tell us that Griswoldian anxieties about natural and unnatural jurisprudences, particular peoples and universal principles, are wildly at play here in the colonial context. We will even find in this same scene the seeds of that chiaroscuro which characterizes those debates in Griswold – this time in Leviathan’s invocation of fear as the basis for allegiance to any sovereign power – whether famously instituted by the mythically mutual contract, or by a rather strained “contract” as the result of conquest, the latter of which Hobbes calls a type of “commonwealth by acquisition”: A Common-wealth by Acquisition, is that, where the Soveraign Power is acquired by Force; And it is acquired by force, when men singly, or many together by plurality of voyces, for fear of death, or bonds, do authorise all the actions of that Man, or Assembly, that hath their lives and liberty in his Power. And this kind of Dominion, or Soveraignty, differeth from Soveraignty by Institution, onely in this, That men who choose their Soveraign, do it for fear of one another, and not of him whom they Institute: But in this case, they subject themselves to him they are afraid of. In both cases they do it for fear: which is to be noted by them that hold all such Covenants, as proceed from fear of death, or violence, voyd: which if it were true, no man, in any kind of Common-wealth could be obliged to Obedience.
29
And indeed, it is in the context of conquest that Hobbes gives his own narrow treatment of Montesquieu’s category of despotism, i.e., some sovereigns are conquerors, and all conquerors can be called “despots.” 30
Montesquieu – while both taking a rather liberal view of conquest specifically, as within the bounds of ius gentium as a means to stability and preservation from worse destruction, and also following Locke’s justification of defensive war only
31
– nevertheless would probably regard Hobbes’ sort of conqueror as a despot. In making the aforementioned attribution of a particular spirit to despotical government (as to government’s other forms), Montesquieu congeals a thread of colonial jurisprudence which Hussain follows back to authors such as Robert Orme, who says that the sons of liberty may here behold the mighty ills to which the slaves of a despotick power must be subject: the spirit darkened and depressed by ignorance and fear …
32
Orme has ultimately framed this distinction in terms of populations Christian and non-, but the emphasis on fear among heathen populations turns Hobbes’ insistence on the pervasiveness of the motive into an ethnic, if not racial, quality: if Eastern or Asiatic populations are suited to despotism – whether tragically or rightly or both, as Orme may suppose – it is in part because of the fear which their history has cultivated in them, and this is fear as a sociological characteristic, not (as for Hobbes) a juridical category. And yet, in a despotical colonial or precolonial context, Hobbes and Montesquieu might have agreed that fear was the prime mover of politics (though, again, Hobbes would suppose this to be true in all places, whereas Montesquieu would look to Europe for Orme’s “sons of liberty”).
As dark and penumbral as the reach of Hobbes’ fear-borne authority can be, however, it does have an illuminating quality. After all, in Hobbes’ eyes, the will of the sovereign is not simple discretion (or, as Hussain notes of the tradition, endlessly intricate discretion)
33
– instead, it is expressed in civil laws which famously radiate meaning into moral quantities, discovering (if not perhaps creating or interpolating) right and wrong in what Hobbes roughly supposes to be an overlay of positive law on the law of nature. “Civil law,” Hobbes says, Is to every Subject, those Rules, which the Common-wealth hath Commanded him, by Word, Writing, or other sufficient Sign of the Will, to make use of, for the Distinction of Right and Wrong; that is to say, of what is contrary, and what is not contrary to the Rule.
34
The law of nature, then, hopefully filtering through the civil ordinances of sovereign power, does shed its Griswoldian radiance on everything from general moral principle to the particular cases on which the state power, or its ministers (that particular Hobbesian preoccupation), pronounce. If anything, it is Montesquieu’s resort to history and to “spirit” as fact- and history-driven essence that shadows the societies he considers, threatening to keep the light of reason from each new case; including, perhaps, even the case of the justness of British colonial rule, where Hussain chronicles the counterarguments of nativist and paternalist thinkers in this regard. 35
Lastly, there is that matter of the contractarian nature of Hobbes’ structure; if Montesquieu rejects this, he loses thereby an important kinship which contractarianism bears with the strange history of discretion-versus-legal-rule in India. In a point which Hussain develops at length, in what I feel is the very brilliant thesis of this chapter, much of the colonial battle between executive discretion and law-based rule by judiciaries – native or British, in each case – had in fact not yet been well settled back at the metropole. 36 There was afoot then, to some extent, a drama in India centered around renegotiating these agendas for the first time, as it were, in a crucible which would reach back to the island conquerors to reshape and solidify their own concept of modern law: 37 “The specific institutional struggles between branches of government in an emerging postabsolutist state,” says Hussain, “are thus repeated in the colony.” 38
This should be a reminder of why colonial situations (if American rather than subcontinental) were so very attractive for contractarians like Hobbes and Locke: 39 because the idea of contract in some state of nature similarly promises, at the very least in the imagination and in political reasoning, a starting-over, a renegotiation of what is already in place. This impulse endures, of course, through John Rawls, who famously encouraged us to do what we would have done, had we passed through the contractarian fantasy which he revised and adjusted for modernity. And so whether we embrace the anthropologico-historical fictions of early modern writers, the intellectual acrobatics of Rawls, or the on-the-ground wrangling of the British and Indian executives and judiciaries, it is eminently clear that, for some people’s money, law is just better the second time around. We learn more, there is more light, as the shadows of historiography, reputation and other prejudice partially retreat and resolve themselves into something juridically cognizable, and as our God-given reason 40 allows us to see the justice that Nature, or fairness, or someone, has, in the poststructuralist phrase, “always already” prepared.
III
When I read Hussain’s 2013 article on drones in The Boston Review, though, I know that he isn’t satisfied with this account of what natural law ideology can do – even if it does it well, even if it sometimes does it justly; in colonial and postcolonial contexts above all, perhaps, he wants to recover an unremoved, unreiterated juridical reality, a reality of which, in a lightning jump to today, subjects are now robbed by the cinematic realm of the drone camera, “structuring reality,” as Hussain puts it, through the new ethnographic fantasies of colonial justice, played out in the special disposition of the armed drone which transmits images of its theater and its targets as a potential prelude to their destruction: The camera angle is always the same: the overhead shot. By definition, the overhead shot excludes the shot/reverse shot, the series of frontal angles and edits that make up face-to-face dialogue. With the overhead shot, there is no possibility of returning the gaze. The overhead shot neither invites nor permits participation in its visual economy.
41
Combined with Hussain’s reminder in “Air Power” that non-European peoples targeted by such technology are, in Carl Schmitt’s formulation, supposedly unable to “share in the civilization of rationalism and commerce, and their governments do not deserve the title of full sovereignty, either because they are nomadic or despotic,” 42 we have a link from Montesquieu’s ideas on legal-colonial rationales of occupation to markedly different postcolonial tactics, in which drones transform a logic of air power – which, as Schmitt pointed out, has swapped an earthbound logic of occupation for one of plain destruction 43 – by swapping destruction for a Hobbesian fear of it, for a legal-martial despotism of a new type and of the old Foucauldian type, for specularity.
Before looking more closely at this characterization of the new warfare, though, it is worthwhile – and Hussain as a historian would surely have approved – to think briefly about the extent of that newness. Drones themselves, of course, considered from a technical and military-historical perspective under their famous moniker of “unmanned aerial vehicles” (UAVs), have been a part of the U.S. arsenal since World War II, playing a surveillance and reconnaissance role early on, 44 and eventually becoming adapted to the crucial role of weapons delivery as well. And when we consider our parallel trepidations regarding the use of drones on the domestic and civilian/consumer side, how would we trace their genealogy back through, say, the gasoline-powered airplanes of hobbyists in the late twentieth century? All of this is another way of asking, what is “new” about drone warfare in the Middle East? What is it exactly that we may now fear, or suppose the people of Afghanistan, Iraq, and other states to fear and revile – the ever-sharpening surveillance? The destructive capabilities? The troubling vicissitudes of remote operation? Or something else?
When it comes to fear, of course, drones (as Hussain knew well) form only the latest chapter of the history of air power and its classical association with, first, civilian casualties and, second, human terror.
45
For the famous case of bombing from the air, we need not even wait for World War II’s enduring accounts of civilian decimation, when a historian of the German forces writes, of the rudimentary aircraft bombing of 1918, that [t]he most frightening [attacks …] are aircraft armed with anti-personnel bombs. … […] we do not worry anymore about infantry fire [and] we have become used to artillery, but these pilots drive the troops to distraction. We literally climb up the trees, in order to avoid fearsome low trajectory projectiles from the exploding bombs.
46
And the soldier’s terror is joined to the civilian’s in assertions like those of Stanley Baldwin’s to the House of Commons in 1932, that “I think it is well … for the man in the street to realize that there is no power on earth that can protect him from being bombed … The bomber will always get through.” 47 This terror that precedes the terror of any actual attack must long have constituted an important part of what Hussain, amending Schmitt, refers to as “morale bombing.” 48
Given this history of air power, then, what is new for Hussain about drones, which he himself says “remain very much within the imaginary of aerial bombing and control”?
49
Especially if, for example, Michael Kelly is right about the bombing in the first Iraq war in asserting that “air power delivered this wildly lopsided victory in a fairly humane fashion”
50
– seeming almost to redeem another commonplace of air power, its lack of precision (Kelly, “The American Way of War”) – then why does Hussain (who also notes bombing’s reputation as “notoriously imprecise”)
51
focus instead on a nonlethal phenomenology of sight lines, of the “overhead shot” which “neither invites nor permits participation in its visual economy”? Hussain calls this vantage of the drone camera “the filmic cognate of asymmetric war,”
52
and radically asymmetric warfare, he teaches us, is “polic[ing]”: Schmitt understood that air power would create a world in which those who command the sky could police and punish those who do not. For Schmitt, this widening gap is both the cause and result of a juridification of war, a shift towards conceptualizing war as a policing activity of criminals.
53
This thesis is largely repeated from “Air Power,” where Hussain concludes his more general essay with a consideration of Schmitt’s further insight that policing goes hand in hand with a framework of bellum intestinum or civil war. Just as the fighting in Vietnam was called a ‘police action’ that turned out to be a civil war – Vietnam, where Hussain notes that unmanned aerial vehicles were used early on, 54 and also, it has been widely felt, where film had its truest and most consequential debut in conflict – so the use of drones is a kind of warfare that turned out to be policing; not conflict with Schmitt’s justus hostis, but the pacification of insurgency; juridification. And “like the overhead shot in film, which excludes face-to-face dialogue,” “[p]olicing action both begins and ends with the criminalization of the enemy.” 55 Many have argued, of course, that this crucial difference between an enemy combatant (or Schmitt’s justus hostis) and a criminal was drawn out by “the targeted killing of Anwar al-Awlaki, a United States citizen who died in a drone strike in Yemen in 2011, without any due process of law” 56 – that paradoxically a U.S. citizen could be deliberately and legitimately subjected to an extrajudicial killing because, somehow, the context of war made it a military death. The asymmetry which Hussain investigates here, then, offers this kind of possible understanding – of the way the drone sees, of its unreturned gaze as a figure of fundamental rights sabotaged, of a citizen who is not permitted to engage the state as it engages him, in all the modes which due process has protected for so much of the U.S.’s history.
Al-Awlaki was never able, no more literally than in any other mode, to face the accusing state, could not return its dicta, could not speak for himself. And indeed, for Hussain, there is also the sound of the drone – he makes the point that, while those on the ground are ground down by the panic-inducing buzz of the unseen encroachment, the absent drone pilot (let alone those behind his/her efforts) hears nothing at all, or nothing from the theater of conflict itself. 57 Such an asymmetry is worth considering even further: in one sense, this dynamic seems the reverse of the visual situation – this time, it is the drone array which is sensorily deprived, which cannot hear, just as in the case of sight, it is those on the ground who do not see their foe or accuser – and yet of course the sound evident to persons on the ground is inarticulate, carries no information except the possibility of an impending attack, and otherwise serves mostly to inspire a corrosive fear. 58 The buzz of combustion and rotor blades is waste noise, but also by that token fundamental and primitive, like the warning growl of an animal – and yet more terrible for being freighted with the significance of far-off, post-primitive, clairvoyant intentions, which aim not to warn, but to spy or strike. Indeed, the noise, if anything, is a flaw, an impurity in the process from the operators’ point of view, it is a practical handicap – could the operators eliminate drone noise, it seems sure that they would do so; and would the silence of terror then be more terrible than its sound?
There is a third asymmetry which we can add to these discussions by resorting once again briefly to the earlier history of air power. It is a commonplace that air war in the early twentieth century changed the shape of armed conflict. With the initial advent of aerial bombardment, for example, armies on the ground were largely deprived of the horizontal logic of ranks, by which an opponent had to penetrate more or less successive layers of infantry, armor, etc., often before reaching officers or other persons of importance for capture or killing (Fig. 1).
Conventional ground conflict. (Shaded units are less vulnerable or nonvulnerable, by reason of line of sight.)
Artillery, which had taken gradually improved forms since the ancient world, still threw munitions in uncertain arcs toward inaccessible parts of an army; but with true attacks from the air, the side that took to the sky in any given setting was given what Hussain reminds us is a godlike view of the enemy, 59 with all opposing ranks on the ground more or less equally open to attack (whatever shelter from aerial bombardment those ranks learned to take in return); and this is not even to speak of the crucial opening of access to military and civilian infrastructure. 60 As for the aerial force, it utilized gravity to greatly increase the range of its weapons, dropping explosives from heights (and at speeds) to which only artillery could return fire, and then only sometimes (Fig. 2).
Air-ground conflict. (Shaded unit is less vulnerable or nonvulnerable, by reason of line of sight/range.)
In the relatively new case of drone warfare, however, even artillery (which does not seem to be a frequent enemy of drone flights) can at most destroy materiel, the hardware of the drone itself, economic cost without loss of human life, and of course this is one of the much discussed advantages of such technology – that loss of life on the air side is eliminated, and that new options of higher risk are therefore open to decision-makers. And yet the pilotless vehicle gives a new meaning to the invulnerability of air attackers, since the drone’s pilot, his/her officers, the executives and policymakers authorizing them – the drone’s “kill chain,” as Hussain reminds us – is, beyond the body of the drone itself, a chain of absences, of entities infinitely more invisible than the drone itself, sought from the ground. It is as if the terrestrial ranks of old are turned at ninety degrees into the air, and figured so that none of the ranks “behind” that drone (or beyond, or “above” it – thus also giving physically vertical expression to hierarchies of rank) — can ever be reached (Fig. 3).
Drone air-ground conflict. (Shaded unit is less vulnerable or nonvulnerable, by reason of line of sight/range. Faded units are nonvulnerable, by reason of absence from theater.)
No ground retaliation can penetrate beyond the drone itself, that bare Derridean hymen 61 beyond which the promised inner reaches, let alone the vital, soft belly of the enemy turns out to be unreal, or insubstantial, incorporeal by virtue of an ever-expanding sorcery of telematics which keeps safe the various combatants who fight with the drone, through the drone, through the “front rank,” paradoxically the only rank, which can often only be heard, less often seen, and still more seldom attacked.
The unreality of the kill chain – at the very least, of all its links but the first – thus compounds the cinematic unreality of Hussain’s drone configuration, and conspires, again, to hybridize the nominal symmetries of war into a conflict with that more chronic, policing character; indeed, to those who complain of the neverending smoldering of U.S. military engagements abroad, it can be said that military policing via drones has institutionalized the potentially limitless duration of such engagements: it is never necessary to deliberate about getting drones “out” of Afghanistan or other theaters, because, in more than one sense, they were never there – except as mostly disembodied, airborne agglomerations of judges, juries, witnesses, and executioners. A unilateral, post-inquisitorial court in the sky. A court against the sun.
And maybe, as we think through preservationist or rectificatory conquest with Montesquieu and the British, as we ponder the “just war” of vengeful defense with Locke and the Americans, and in Hussain’s engagement with Schmitt, we are apt to reflect that all conflict is juridical in this sense that drone warfare makes plain: that war was never as simple a matter as aggression or want of power, but that – long before the rules of war, long before international law and war crimes – war was always an attempt to extend some notion of law’s shadow. Or to shine law’s light.
As such warfare seems still to accelerate in the Middle East; as more American consumers take to the skies with drone-borne cameras; as the Google car cameras of yesterday are launched from their ground-level reconnaissance into the sky on Amazon’s delivery drones, we all have reason to rediscover fear and doubt of law’s shadow. In the Middle East, they rediscover the fear of the sovereign in conquering colonial violence; in the West, we rediscover the Foucauldian fear, also so important to Hussain’s work, that famously turns to self-submission. 62
But maybe there is some good news. There is, after all, at least one way in which we on the ground can hope to restore some immediacy to the overhead gaze of the drone – can hope to restore a measure of symmetry, to restart the filmic dialogue interrupted by the machine’s special vantage: we can look up. As many do apparently, momentarily, before running for shelter to avoid being singled out for attack, or perhaps for identification – and it goes without saying that an overlong, searching upward gaze can doubtless cost people their lives. But a gaze of recognition might be something different: a momentary ritual, a salute – a white flag, a rebuke – whereby we can look above us and, hypothetically or symbolically, meet that seeing which is still strange and new to us, the “mostly invisible” gaze 63 that in our instinct and our imagination, as Hussain reminds us, should still belong to a bird or to God. 64 To the same God from whom the illuminations of natural law were and still often are thought to descend – but now, when that solar illumination is wounded by the vanishing shadow of the often unseen tormentor, we can look up to see the encroaching penumbra of the law.
For its part, the law, looking down, may not yet have cameras of sufficient power to resolve a human gaze, but it is just possible that this technology will overcome itself – to judge by the technological trajectory that Hussain painted in 2013, it certainly will. 65 It might be just such a technological development which is needed to restore to the attacker the famous anxiety of the Lacanian gaze, 66 an anxiety which is otherwise defused by the telematics of the drone. It is not that the pilot, much less his or her superiors, seeing through a keener drone’s eye, will feel him/herself as the subject of the gaze of his/her combat-target objet a in Lacan’s traditional sense; it is frequently remarked that the drone, after all, offers the possibility of voyeurism, long celebrated in psychoanalysis as a grand libidinal sidestep of sexual anxiety. But when the viewed target knows itself seen, knows itself targeted and thereby made a Lacanian objet a – and visibly demonstrates this through a returned glance, even at a watcher ill-seen or unseen – then the sabotaged structure of the gaze is restored, the intentional, symbolic mutuality repairs the purely optical mutuality – the line of sight interrupted by drone clairvoyance – along which the Lacanian psyche plays. And maybe in that moment, the actors Hussain describes – the drone’s pilot, the officers in its “kill chain,” and most importantly, perhaps, “its” lawyers 67 – will see a subject again who is like themselves. A gazer, an objet a, for Lacan – and for the law (though probably not the law in Lacan’s sense), 68 someone who is not an a priori criminal, an outlaw insurgent or a hapless collateral native, often not even a combatant – but once again a proper, rights-bearing, traumatizable accused.
“What is lacking,” says Hussain in “Auden’s Law Like Love,” “is mutuality.” 69 In that unpublished essay, he is speaking of the various nonmutual “solipsism[s]” and betrayed communions of love in various personal and political incarnations; ought we to count among these incarnations Montesquieu’s notion of conquest from earlier on – the dictum of self-preservation superimposed on the not-self, that “[c]onquest is an acquisition; the spirit of acquisition carries with it the spirit of preservation and use, not that of destruction”? 70 And if we should so count it, can we also count on Hobbes’ dark insistence on the light of natural law to ameliorate this lack of nonmutuality, just as we began by tracing those same emanations of natural constitutional right through Griswold? After all, Griswold was about privacy – and if drones also present a concern for privacy (perhaps as part of the freedom from fear which we have been discussing, and as they famously do in U.S. domestic contexts), then it is important that, on the basis of what Hussain has taught us, privacy seems to require mutuality, to require a returned gaze as a condition of being oneself, of being sovereign, even of being hidden from view – via such hiding illuminations, via this light which (like all light) creates shadow, is it then possible for those living in the shadow of the drones – indeed, for all of us who, now or in the near future, may find ourselves in such a shadow – to look up in the way contemplated above, to meet the gaze of the law, and so to feel ourselves once again properly in its shadow, its penumbra? And because we would once again be an accused, a living, human, legal actor, we might be able to see once again, as we used to, the full double aspect of the law, the shadow and the light, the pronouncement and the Reason, the equitable interpolation and the unique discernment and regard. Just as the drone’s pilot will still depend on light, of whatever wavelengths, to see his or her object, we will look back up at the drone, and see it, in our mind’s eye, silhouetted; and then perhaps we will see once more, beyond it, the sun.
What a crucial opportunity to continue this work, using these subtle and profound formulations which writing like this leaves for us – new paradigms of the colonial, the postcolonial and the neocolonial territory and mindset – to test some of our most secure beliefs, here and now in what remains of the bosom of liberalism.
What an urgent time to give voice to the surprising, to profane dissents, and to the lingering, generation-wasting agonies of misrule and misconception, while at the same time affirming the hope that comes with study and speech …
What a wonderful chance, even now, to get to know Nasser Hussain.