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Adam Roark. Pure Law and Bare Life in CIA PrisonsPure Law and Bare Life in CIA Prisons In November 2005, leaked top-secret information revealed the existence of a global network of secret CIA prisons wherein prisoners are held and processed “without judicial involvement” (Associated Press). Identified as ‘detainees’ or ‘enemy combatants,’ these prisoners are held without designation as citizens, who are subjects of constitutional rights and law, but rather as suspected terrorists who cannot be managed in a constitutional manner. While initially it appeared that the revelation of the CIA prison network would become the grounds for partisan fighting in the US, instead, the Washington Post reports “the CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held”. The aftermath of the media exposure of the prisons reveals that the creation, execution, and disappearance of the prison network demonstrate Agamben’s thesis of a ‘permanent state of exception’ and the emergence of pure law. As a model for the modern state of exception, Agamben uses the Roman law of iustitium, which called upon various sectors of government and citizenry (depending on the extremity of the emergency) to take whatever measures they deem necessary for the salvation of the state (41;2005). The iustitium explicitly articulated the players in the state of exception: it organized the subjects of the state to transcend the juridical order for the sake of preserving the sovereignty of state law. Further, Carl Schmidt originally defined the sovereign as ‘he who decides on the state of exception’. Therefore the state of exception expresses the nature of a relationship between sovereign and subjects. In modern times, however, the bureaucratic apparatus of the state interferes with the raw power of the state of exception. The designation of the human subject as citizen, with accompanying rights and juridical process, inherently limits the power of the sovereign which, in the state of exception, requires absolute power to overcome internal conflict. In this context, the new relationship between sovereign and subject can be defined as pure law. Pure law strips the citizen down to its naked form, termed ‘bare life’ by Agamben. No longer a citizen, bare life is controlled and punished in the most raw and violent manner, reversing the evolution of methods of sovereignty from industrial discipline and republicanism to medievalist gratuitousness. The secret prisons are what Agamben refers to as a camp. Rooted in Nazi concentration camps, the camp is the space that opens between sovereignty and law when the state of exception is the rule (39; 2000). In the camp, the conflict is not between citizen (who has rights) and the state (which has a juridical structure and judicial process). In the camp the conflict is between sovereign and bare life, the human reduced to its biological definition. It is in the camp that enemy combatants, as the public and legal systems know them, can be chained naked to the ground and freeze to death as part of the exercise of power over bodies. The camp is the manifestation of the state of exception, the missing theoretical link between the Final Solution and the War on Terror. The connection is not any similarity between Bush and Hitler, Poland and Iraq, or Blitzkrieg and Pre-emptive Strike. The camp is the space outside of the law which is created and carefully managed in order to pursue the ends of the state. Just as Auschwitz and Guantanamo are gratuitous means of managing crises of national security, they are similar in the remarkable ease with which their sovereigns strip citizens down to bare life and command them in an extra-legal space.
The same day that Bush clarified the U.S. position on the secret prisons, the U.S. Supreme Court allowed an ACLU challenge to the use of military tribunals for detainee Salim Ahmed Hamdan. Hamdan, bin Laden’s former driver, is linked to the juridical order via military tribunal and is thus accessible to the constitutional process. The intervention of the judicial system allows Hamdan to be identified as a citizen rather than as bare life under the sovereign. CIA detainees, however, exist entirely within the space of the camp and are thus inaccessible to constitutional order. The case of Hamdan as opposed to the secret detainees provide two contrasting models of sovereignty, emphasizing the divide between human, the subject of pure law, and citizen, the subject of constitutional law. Hamdan perhaps was fortunate enough to escape pure law due to the often non-inscribed, uncertain nature of extra-juridical sovereignty.
The CIA, White House, and Department of Defense refused to acknowledge the existence of the prisons, which are also categorized as ‘black sites’ (Aljazeera.com). The black sites are not announced, disclosed, nor denied and hidden. Even the terminology suggests darkness, a void in the juridical order. Expert media sources assumed the anonymous pseudonyms of “former and current U.S. officials”. Through a series of anonymous comments, vague disavowals of knowledge, and indirect responses, the U.S. creates a political space between international law and illegality. In response to European criticism of CIA activity, Secretary of State Condoleezza Rice asserted that the U.S. does not allow torture and respects principles of the Geneva Convention (Associated Press). This response simultaneously deflects doubts about the legality of the camps and suggests their compatibility with established law. Between nomos and anomie, between legal structure and illegality, the state of exception both reinforces the law and negates it. The state of exception and the onset of pure law is indicative of the decomposition of a prior form of legality. Agamben concludes: ‘it is evident that the European nation-states no longer have any assignable historical tasks… Humankind has by now reached it historical telos and all that is left to accomplish is to depoliticize human societies either by unfolding unconditionally the reign of [economy] or by undertaking biological life itself as supreme political task’ (140; 2000). Agamben identifies the decline of the state as guardian of nation and rights, of the commonwealth as the fulfillment [exhaustion] of the historical task of the state. This exhaustion leads to the undertaking of naked life as political subject, to the emergence of the camp as force of law. This is most clearly indicated by the difficulty presented by the suicide bomber, the terrorist whose naked life is turned against the sovereign as a weapon. It is this difficulty, this crisis, which serves as the pivot to state of exception. |
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