A Universal Enemy? Legal Regimes of Exclusion and Exemption Under the ‘Global War on Terror'

Abstract

This essay argues that the ongoing U.S.-driven “Global War on Terror” stands apart from similar state campaigns in its special focus on confronting “foreign fighters” – armed transnational non-state Islamists operating outside their home countries – in places where the U.S. is no less foreign. This global hunt for foreign fighters animates diverse attempts to exclude similarly “out of place” Muslim migrants and travelers from legal protection by reshaping laws and policies on interrogation, detention, immigration, and citizenship. Yet at the same time, certain other outsiders – namely the U.S. and its allies – enjoy various forms of exemption from local legal accountability. This essay illustrates this braided logic of exclusion and exemption by juxtaposing the problems of extraordinary rendition and military contractor impunity in both post-war Bosnia-Herzegovina and post-invasion Iraq. This framework – which predates and will likely outlast the Bush administration – undermines the rule of law and state-building efforts and occludes crucial questions surrounding the legitimacy of how U.S. global power is exercised. This essay employs treaties, Bosnian, Iraqi, and U.S. statutes, cases, and regulations to reframe post-Cold War debates about nation-building and post-9/11 arguments about the laws of war.