Law's Enemies: Enemy Concepts in U.S. Supreme Court Decisions

• DOI: https://doi.org/10.1016/S1059-4337(06)40002-8
• Published date: 10 April 2007
• Pages: 41-77
• Date: 10 April 2007
• Author: Christiane Wilke

LAW’S ENEMIES: ENEMY

CONCEPTS IN U.S. SUPREME

COURT DECISIONS

Christiane Wilke

ABSTRACT

In a series of mid-20th century cases, the U.S. Supreme Court has mod-

ified and diversified the status of the enemy in U.S. law. We see a shift

away from the statist egalitarian model toward a transnationalized model

of enemies. U.S. Supreme Court decisions in three clusters of cases

(German enemy aliens, the internment of the West Coast Japanese

Americans, and Communist) from the 1940s and 1950s prefigure the

radicalized post-9/11 ‘‘enemy combatant’’ status. The choice for such

enemy conceptions is both a result of and a contribution to the changes in

contemporary practices of violence.

What are enemies? The emergence of ‘‘new wars,’’ real and metaphorical,

raises questions about the structure of enmity in these wars. In relationship

to the concept of war, Carl Schmitt (1994b, p. 278) claimed, ‘‘enemy is

nowadays the primary concept.’’ Even if this should turn out to be a

Schmittian exaggeration, the concept of the enemy remains undertheorized.

Are the ‘‘new wars’’ (Kaldor, 1999) based on new concepts of the enemy?

Studies in Law, Politics, and Society, Volume 40, 41–77

Copyright r2007 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(06)40002-8

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How do the dominant concepts of the enemy shape the practice of enmity?

And what does it mean to have enemies?

In each conflict, the parties produce specific forms of enmity based

on the characteristics that they project onto or reveal to each other. Enemies

can be molded into strikingly different shapes for different practices of

violence: enemies range from the idealized enemy-as-a-peer of classic

European international law to the ‘‘unlawful enemy combatants’’ – unilat-

erally designated as such by an imperial power – whose affiliation is murky

and whose status as enemies is beyond the law of warfare. The ‘‘war

on terror’’ not only combines the frameworks of crime and war with a heavy

dosage of conceptual obfuscation, but it is also engaged in producing

and multiplying legally ambiguous categories of enemies. These enemy

categories are not entirely new: the terms ‘‘unlawful combatants’’ and

‘‘enemy belligerents’’ are lifted from mid-20th century U.S. Supreme Court

cases. These Supreme Court cases provide the terminology and prepare

the conceptual stage for the post-9/11 enemy combatant policies: they

invent and multiply categories of enemies in ambiguous legal territory.

These enemy categories and their revisions, in turn, map on far older

debates about the status of different enemies in Western legal and political

thought.

In the mid-20th century U.S. Supreme Court cases, the production and

multiplication of enemy categories was a direct response to the administra-

tion’s identification of three broad categories of enemies – (mostly German)

Nazis, (mostly foreign) Communists, and ethnic Japanese (mostly U.S. cit-

izens) – whose relative significance changed from 1940 to the mid-1950s. In

creating ever new enemy categories, the Supreme Court acted as a ‘‘con-

summate producer of excepted populations [and] excepted spaces’’ (Stoler,

2006, p. 141), revealing the ambitions of an imperial project that is in need

of elaborate legal categorizations of the enemies it might encounter. The

Supreme Court’s creation of new types of enemies shifted the dominant legal

understanding of the enemy status away from the egalitarian statist frame-

work of (intra-Western) warfare toward forms of ideology-driven transna-

tionalized violence. This move is both a response to and a condition for ne w

forms of organized violence. The shift can be registered along four main

axes that allow us to distinguish between different conceptions of the enemy:

enemies differ regarding their perceived organizational structure: regular

(state-like) or irregular. They also differ in their perceived ethical distance or

proximity. Third, enemies differ in how their membership rules are under-

stood. And finally, the rules for recognizing enemies vary from mutual rec-

ognition to unilateral designation. All these criteria influence one another:

CHRISTIANE WILKE42

irregular enemies, for example, are often assumed to be ethically distant and

not capable of mutual recognition of enmity.

The question of the enemy poses questions about one’s own identity: the

enemy is the embodiment of the question of our own self, as Carl Schmitt

stated it cryptically: ‘‘I have to face him – fighting – in order to establish my

own measure of proportion, my own boundaries, my own self [Gestalt]’’

(2002, p. 87). The members of the collective ‘‘self’’cannot at the same time be

enemies of this collectivity. Enemies stand apart from ‘us,’ or they have to be

made to stand apart. Enemies are others, but not all others are enemies

(Kennedy, 1997, p. 349). The necessary location of the enemy outside the

boundaries of the political community raises questions about these bound-

aries: what does membership mean, and how is it distributed? The post-9/11

enemy combatant designations have included U.S. citizens alongside with

persons of other nationalities (Fletcher, 2004). What seems like a de-nation-

alization of enmity is based on a reconceptualization of citizenship as effec-

tive allegiance and speaks to the transnationalizationof loyalties and violence

– in the mid-20th century as well as in the beginning of the 21st century.

I examine three clusters of the mid-20th century U.S. Supreme Court cases

that adjudicated and stabilized the enemy status. First, in a series of cases

from 1942 to 1952, Ex parte Quirin, 317 U.S. 1 (1942),Ludecke v. Watkins,

335 U.S. 160 (1948),U.S. ex rel. Jaegeler v. Carusi, 342 U.S. 347 (1952), and

Johnson v. Eisentrager, 339 U.S. 763 (1950), the U.S. Supreme Court ad-

judicated the ‘‘enemy alien’’ and ‘‘unlawful combatant’’ status of German

citizens. The second cluster of cases, Hirabayashi v. U.S., 320 U.S. 81 (1943),

Yasui v. U.S., 320 U.S. 115 (1943),Korematsu v. U.S., 323 U.S. 214 (1944),

and Ex parte Endo, 323 U.S. 283 (1944), arose in response to curfews and the

detention of Japanese citizens and Japanese Americans that started in 1942.

And third, in cases like Harisiades v. Shaughnessy, 342 U.S. 580 (1952),

Kessler v. Strecker, 307 U.S. 22 (1939), and Schneiderman v. U.S., 320 U.S.

118 (1943), the Supreme Court continued its jurisprudence on Communists

of different nationalities who were understood as enemies of key American

principles in the context of an undeclared quasi-war – the Cold War. All

these cases elaborate on and modify the Presidential powers to exclude en-

emy aliens that are codified in the 1798 Alien Enemy Act.

Why should we look for enemy conceptions in the law? The decision on

the enemy, to paraphrase Carl Schmitt (again), is a political decision. It may

not be the decision at the core of the political, as Schmitt (1996, pp. 26–28)

wants us to believe, but the decision nevertheless transcends the domain of

the law. Still, the decision on the enemy is often ‘‘elaborated within the

limits of law’’ (Anidjar, 2004, p. 38). The U.S. courts had a major role in

Law’s Enemies: Enemy Concepts in U.S. Supreme Court Decisions 43