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

Abstract

This Article 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, nonstate Islamists operating outside their home countries — in places where the United States 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 United States and its allies — enjoy various forms of exemption from local legal accountability. By juxtaposing the problems of extraordinary rendition and military contractor impunity in post-war Bosnia-Herzegovina and post-invasion Iraq, this Article illustrates this braided logic of exclusion and exemption. Predating and likely to outlast other legacies of the Bush administration, this logical framework undermines the rule of law and other state-building efforts while occluding crucial normative questions surrounding the legitimacy of the exercise of U.S. global power. This Article examines legal structures in Bosnia-Herzegovina and Iraq and their underlying premises to reframe post-Cold War debates about nation-building and post-9/11 arguments about the laws of war.

Keywords: war on terror, human rights, humanitarian law, torture, occupation, rendition, contractors, citizenship, immigration, state-building, Bosnia-Herzegovina, Iraq