Beyond Color-Blind National Security Law

(Editor’s Note: This article is part of a special Just Security “Racing National Security” symposium edited by editorial board member Matiangai Sirleaf. The goal of the symposium is to render race visible in national security to shift the dominant paradigm toward addressing issues of racial justice.)

I want to begin my contribution in this symposium on Racing National Security by congratulating Just Security for adding two phenomenal scholars, Matiangai Sirleaf and E. Tendayi Achiume, to its editorial board. As this series has already indicated, editorial appointments are key to opening up conversations that are not traditional in the area of national security and foreign affairs in spaces like Just Security. Far too often, discussions about law in general, and national security law and foreign affairs specifically, are color blind. This state of affairs is now being challenged head-on with the uprising against systemic racism.

For those of us who adopt a non-mainstream or critical approach to the study of international law and international relations, it has always been clear that national security, foreign affairs, and race are closely and intimately connected. Hopefully, the pigeonholes that segregate where and by whom each is discussed in policy and academic circles will continue to erode.

The metaphor that best exemplifies the wide gulf between those who acknowledge and explicitly engage with the racialized nature of many national security issues in their work, and those who do not is that of two ships passing in the night — completely unaware and oblivious of each other, as I have argued in a related context recently. The first ship, marginalized by the mainstream and predominantly White national security policy and scholarly community, carries approaches that contextualize law to make issues such as  race and identity visible. The second carries approaches that emphasize doctrinal dilemmas and theoretical quandaries — what I call plain vanilla or colorblind scholarship and practice. The Racing National Security series is one small step toward ending this marginalization.

In the remainder of this article, I will use examples from international law and practices of colonialism, and their enduring legacy to date, to support my claim about the close links between national security, foreign affairs, and race.

International Law, Race, and Violence

African American and non-European scholars and policy makers have led the way in exposing the racial dimensions of national security, international law, and violence. These scholars and policy makers object to national security and foreign policy discussions that justify war and intervention on the pretext that Third World countries are bedeviled by backwardness, violence, corruption, calamities, and disaster. Yet so far these conversations have remained at the periphery of mainstream national security and foreign policy discussions.

Consider the work of Henry J. Richardson III, who has traced, like no other scholar of international law, how such national security and foreign policy decision-making is deeply implicated in the legacy of the transatlantic slave trade, colonialism, post-colonial wars for self-determination, apartheid and fights to maintain control over access to resources of third-world nations by first-world nations. Richardson uncovers the Black international law tradition to the early seventeenth century, the revolts in Haiti, and the early Black rebellions against slavery and the plantation system in the United States. For Richardson, these resistance and freedom initiatives took a more global outlook in the nineteenth century with the growing understanding by Black communities in the United States of the subjugation and struggles of Africans by European colonial powers; hence, a symbiotic relationship emerged between the civil rights movement in the United States and decolonization initiatives in Africa.

Further, as Antony Anghie reminded us in his 2010 Grotius Address at the Annual Meeting of the American Society of International Law, Hugo Grotius, considered by many as one of, if not the most, important intellectual fathers of international law, is habitually misrepresented as a bringer of peace and justice in a Europe strewn with religious conflict and war. To attain his vision of order – and thus European national security – Grotius, a White Dutch lawyer, justified slavery. He also recommended and legitimized war against non-Europeans resisting colonial conquest. Anghie concluded that the Grotian approach dominates mainstream international law scholarship. This literature uncritically characterizes Grotius as advocating peace, when he in fact appears to “advocate violence of an almost unrestrained sort.”

Anghie’s classic book, “Imperialism, Sovereignty and the Making of International Law,” traced the hallmarks of those influenced by Grotius and the ways this has mobilized the dynamic of difference between Europeans and non-Europeans, including in the post-Second World war era of the United Nations and the often illegal interventions into non-European countries of the post-cold war era.

The foundational “savage/victim/savior” metaphor, as Makau Mutua calls it, in these approaches in turn justifies intervention into non-European countries by interventionist powerful nations of the Global North. From this perspective, Ruth Gordon has argued that the U.S. dominance in multilateral institutions like the U.N. means that “the racial ideology of the United States is being reproduced internationally and directly determines the content of international norms.” Thus, the debates about the boundaries of violence in international law around issues of conquest, colonization, slavery, and self-determination are not simply issues of war and peace, but also of different epistemic visions of international law itself.

In the era of decolonization, which sought to dismantle colonialism’s racialized system of oppression and underdevelopment, Third World States and scholars viewed key international instruments as constituting a new international law that reversed the just war tradition influenced by Grotius used to repeatedly legitimize war against non-Europeans. Third World States asserted that the 1970 “Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations” outlawed both military intervention and economic and political coercion. This declaration, according to Third World jurists of the period, traced its provenance to the prohibition of the threat or use of force in international relations in the U.N. Charter, which protected both the territorial integrity and political independence of states. The International Court of Justice’s celebrated Nicaragua v. United States decision also came to represent this classic endorsement of the prohibition of the threat or use of force.

Third World scholars, such as Georges Abi Saab, argued that national liberation movements that sought to end racist, alien, and colonial rule were rights-holders on behalf of non-self-governing territories. This claim was recognized in 1973 in the U.N. General Assembly Resolution 3103, which resolved that the “struggle of peoples under colonial and alien domination and racist régimes for the implementation of their right to self-determination and independence is legitimate and in full accordance with the principles of international law.”

While many then-newly independent States supported these emerging international legal principles in the era of decolonization, many also resorted to strong claims of sovereignty that repressed secessionist movements and opposition political movements. For example, Algeria, a leader of Third World anti-colonial nationalism, exemplified this repression of internal political dissent. Thus, while rejecting a colonial vision of national security, governments in many newly independent States themselves resorted to national security as a pretextual strategy to protect their territorial integrity and political survival.

Thus, international and national security legal regimes have always been steeped in racial connotation, even if rarely acknowledging as much. This raises the question of what a different epistemic account of national security law, one that centers race might look like.

U.S. National Security Law and Colonialism

There are very few examples of policy-related work or scholarship in the national security area that are explicitly grounded in exploring its colonial underpinnings. The work of Ernesto Hernandez Lopez, Natsu Taylor Saito, and Mary Dudziak are among the few examples that come to mind. Yet, close connections between U.S. national security law and colonialism do exist. One example of this typically unacknowledged connection is the Supreme Court’s decision in Rasul v. Bush. Here, the Court had to decide whether the scope of the habeas writ extended extraterritorially – that is, whether non-U.S. citizens captured by the U.S. military outside the United States and detained in Guantánamo Bay prison could bring a case in U.S. federal court to challenge their detention. In considering this question, the Court largely relied on precedents from colonial-era Africa. These precedents asked what a colonial court would do if confronted with a habeas petition from one of the crown’s possessions outside the geographical borders of the crown’s territory. In other words, the question posed in those cases, like in Rasul, was whether the writ of habeas extended over distant possessions, of course over non-European peoples whose identity was racialized.

My point here is that the sustained historical exegesis between Justice Scalia and Justice Kennedy in Rasul and similar cases about the scope of the habeas writ removes from our vision the people and the events that produced these cases. Reading these cases as Justices Scalia and Kennedy did, the overwhelming amount of policy and scholarly commentary erases the broader context in which the cases were being decided, and the policymakers who were making and implementing the laws that triggered these historical habeas applications.

The policies denying individuals habeas writs were authored by White colonial officials. In addition, the judicial decisions largely upholding these policies, were authored by White colonial judges. Both of these groups routinely and quite explicitly justified their conclusions by pointing to the barbarity, racial inferiority, and backwardness of the populations of colonial possessions in Africa and Asia. For these colonial officials and judges, these populations did not deserve the protection of rights such as habeas. These rights were reserved for the White populations of the metropole on account of their birth citizenship. It is therefore striking that the relevant precedents for the U.S. Supreme Court in cases like Rasul are colonial-era cases that are predicated on racist justifications. The overwhelming policy and scholarly treatment of these cases has elided this history. The fact that these precedents centered around avoiding holding White colonial governors responsible for violating the rights of their non-White subjects illustrates the enduring legacy of racialized repression of people of color.

For example, the Rasul majority relied on Ex parte Mwenya, a case involving 61 African activists and trade unionists, and members of the African National Congress, who had been excluded from the Copper Belt in Northern Rhodesia (now Zimbabwe) by virtue of restriction orders issued under the Emergency Powers Regulations by the racist British colonial government. Arrested in 1957 and detained in isolation away from home, they had been held incommunicado with no charge for at least three years when their habeas petition was finally determined. These African activists and nationalists challenged the repressive security system designed to clamp down organized resistance against legalized systems of land inequality, an industrial color bar and racial discrimination in public accommodations that systematically discriminated in favor of white settlers. In this rare circumstance, the petitioners were successful in obtaining habeas writs. Therefore Ex parte Mwenya is the exception, rather than the rule as one of the rare cases in which common law courts extended the writ extraterritorially.

The 1910 decision of R v. Earl of Crewe Ex parte Sekgome, cited by the Rasul majority in support of the writ’s “historical reach,” is a perfect example of the contrary proposition that prevailed under the colonial habeas jurisprudence – that the writ was generally unavailable outside the territories in which the crown had not acquired territorial sovereignty even if the crown exercised complete jurisdiction and control in such territories. In fact, it will be remembered that Sir Edward Coke had long before reassured the crown that the common law courts would not meddle with anything done “beyond the seas.”

By citing Ex parte Sekgome, as they did in footnote 14, to support their view of the historical reach of the habeas writ, the Rasul majority performed a judicial sleight of hand in at least two ways. First, by glossing over the case law at common law to arrive at its conclusion on the historical reach of the writ. Second, by completely ignoring the racist underpinnings of the precedents they relied on to deny habeas relief to (non-White) prisoners simply because they were foreigners, as Justice Harlan feared in his dissent in Hawaii v. Mankichi.

Notably, the logics in the precedents that the Supreme Court invokes to decide important national security cases is reflected in the current moment with state officials repressing protesters advocating for racial justice. The colonial-era arguments that justified repression of legitimate anti-colonial and anti-racist protests are being recycled to repress similar movements and protests today including here in the United States. In the post-George Floyd moment, that has triggered this symposium on Race and National Security, policy-makers, scholars and others must do much better to acknowledge and explicitly account for the racial and colonial logics that underpin the jurisprudence and practices of national security law and policy. There is simply no credible justification – other than sustaining the dominance of a color-blind national security entrenched in White supremacy – to continue separate streams of policy and scholarly discussions that facilitate the subordination of people of color.

Conclusion: A New Dawn or Long Dusk?

It is unusual for Just Security and other fora to devote an entire symposium to “racing” national security. Race has largely been absent in policy and academic discussions of national security, yet it has been hiding in plain sight. We can see how many governments, including that of the United States, have deployed colonial era practices suppressing the protests against racist violence against Black people and other minority groups in the country. The labeling of Black Lives Matter protesters as “communists” in the United States today, follows a very familiar pattern. In the era of decolonization, the United States also tagged anticolonial movements with the cold war label of communists.

I hope this symposium is the beginning of a more inclusive conversation about national security and foreign affairs on this blog and in other spaces in our discipline as well as in policy circles. Engaging in a discussion about race is productive not just for those who study national security from a critical lens and who incorporate race as an important element of their scholarship, but also for those who do not consider race at all in their work, scholarly, policy, or otherwise.

Taking race into account is especially important for policymakers who provide advice to the political branches on foreign affairs. Providing color-blind advice that is decontextualized from considerations and implications relating to race and identity does not advance national security goals effectively. This is particularly important at a time when fewer Black individuals are working in the U.S. State Department than at any time in its history. Of course, the responsibility for anti-racism does not rest on the small cadre of people of color in government; it is a responsibility that is and should be shared by all.

Perhaps this symposium means that scholars and policymakers who mostly attend separate conferences, publish in separate places, and rarely engage directly with each other’s work, will find this as one place where they can engage on these important issues. I hope this is a new dawn, but I must say that I am pinching myself wondering whether this is a long dusk.

Image: President Donald Trump participates in a meeting with Senior Military Leadership and the National Security Team in the Cabinet Room of the White House in Washington DC, May 9th, 2020. (Photo by Anna Moneymaker-Pool/Getty Images)

 

About the Author(s)

James Thuo Gathii

Professor of Law and Wing-Tat Lee Chair in International Law at Loyola University Chicago School of Law.