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13. The American
State of Exception
It was long a
commonplace, particularly during the nineteenth and
especially the twentieth centuries, for American scholars to argue
for what is sometimes termed the American exception. By this is
meant in part the notion that the United States, with its representative
government and its system of checks and balances, is ingeniously
designed to avoid the dangers of authoritarian repression and
a one-party state. And, of course, there is the larger notion that the
United States is somehow an exceptional or, in the rhetoric echoed
by Presidents Reagan and George W. Bush, a "chosen nation," with
a singular destiny. Although such nationalist language is not all that
uncommon-similar rhetoric is to be found in Russia, Germany,
China, and many other nations-in the United States in the early
twenty-first century, such rhetoric began to have consequences that
are of particular interest for our argument here. Out of such rhetoric
emerged an American state of exception, and with it, the disturbing
outlines of inquisitorial behavior.
We will recall the juridical term "state of exception" from our
earlier reference to Carl Schmitt's Politische Theologie (1922). It
refers
not to an exceptional nation blessed by God but to a suspension
of law by authoritarian decree. According to Schmitt, as we have
seen, a ruler or sovereign can be defined as one who decides on a
state of exception. Thus, for example, upon assuming power, Hitler
suspended the German constitutional protection of civil libertiesand
as Giorgio Agamben points out, that state of exception prevailed
128 THE NEW INQUISITIONS
throughout the entire period of the Third Reich.' Hence, Agamben
continues,
"modern totalitarianism can be defined as the establishment, by means of
the
state of exception, of a legal civil war that allows for the physical
elimination
not only of political adversaries but also of entire categories of
citizens who for
some reason cannot be integrated into the political system."2 The "state
of
exception" is pivotal for understanding how some dimensions of a
totalitarian
state can emerge even within a constitutional republic.
In the wake of the events of September II, 2001, the U.S. Congress
passed
what was known as the USA PATRIOT Act, which suspended at least some
American civil liberties in order for federal authorities to investigate
or pursue
suspected terrorists within the United States. After the subsequent
American
invasion of Afghanistan, it eventually became clear that the United
States also
had imposed a state of exception on military prisoners whom it suspected
of
being terrorists or of knowing about terrorists or terrorist plots. This
latter state
of exception resulted in the creation of an entirely new class of
prisoners, often
accused Taliban members from Afghanistan, who were termed "enemy
combatants,"
or "detainees," and who were not defined as prisoners of war under
the Geneva Convention, nor accorded the rights of the accused under
American
law. In short, in the wake of September II, 2001, the United States
imposed
what we may term a targeted or limited state of exception both
internally (in
the PATRIOT Act) and externally (in the establishment of "detainee"
camps at
Guantanamo and elsewhere around the globe).
The prisoners or "enemy combatants" held in camps like Guantanamo
were subject to what in Nazi Germany was the basis for the Nazi state
itself:
gewollte Ausnahmezustand, or a "willed state of exception" (willed by
administrative
fiat). They had, effectively, no human rights-they existed in a no-man's
land without citizen's rights, and so without judicial recourse, without
the
rights accorded to military prisoners under the Geneva Convention, and
so
without a military tribunal. As a result, there also was no time limit
imposed
on their imprisonment: held on an island military base, they might as
well
have been transported into outer space. How they were treated, or
whether
they were guilty or innocent is not under consideration here-what
matters in
terms of our case here is that these prisoners existed in a juridical
"state of
exception. "
After the American invasion and occupation of Iraq in 2003, the same
rationale was invoked for the suspension of the Geneva Convention so as
to
allow more "vigorous" interrogation of Iraqi prisoners. More and more
documents
became available under the American Freedom of Information Act that
revealed Bush Jr. administration officials consciously sought to
circumvent the
Geneva Convention in the belief that torture of prisoners would be more
efTHE
AMERICAN STATE OF EXCEPTION 129
fective not only in gaining information but also in showing American
resolve
to "do what it takes" and thus overcome Iraqi resistance.3 These
arguments in
favor of a "state of exception" for Iraqi prisoners led as if inexorably
to the
scandals of prisoner torture and sexual abuse at Abu Ghraib, Guantanamo,
and elsewhere. Such abuse of prisoners is a consequence of the
abrogation of
human rights, and of the consequent attitude that the prisoners (the
enemies)
are less than human.
Rendering to the Secular Arm
But there is a related example of the American "state of exception" in
what the
United States government euphemistically termed "extraordinary
rendition."
"Rendition" is a somewhat hazy term for a shadowy practice that,
although
it reportedly had its origins in the 1990S, became more and more common
after September II, 2001: the practice of spiriting American prisoners
secretly
away to foreign countries where they could be tortured or killed. As
Jane Mayer
put it,
The extraordinary-rendition program bears little relation to the system
of due process afforded suspects in crimes in America. Terrorism
suspects in Europe, Africa, Asia, and the Middle East have often
been abducted by hooded or masked American agents, then forced
onto a Gulfstream V jet .... Upon arriving in foreign countries,
rendered
suspects often vanish. Detainees are not provided with lawyers,
and many families are not informed of their whereabouts"
"Detainees" are imprisoned, often in vile conditions in, for example,
Egypt,
and then tortured. Subsequently, some are released, whereas others
simply
disappeared, probably executed. "Rendition" is, of course, the secular
equivalent
of the common practice of the Inquisition throughout its history:
"rendering"
suspected heretics to the "secular arm" because the Church itself did
not conduct torture and murder.
How was the Bush Jr. administration able to legally justify the
"rendition"
of uncharged, unconvicted, unrepresented individuals into the hands of
torturers
and murderers in foreign countries? John Yoo, Alberto Gonzales, and
other Administration lawyers argued in the aftermath of the invasion of
Afghanistan
that it constituted a "failed state," and as such fell outside the
Geneva
Convention. A horrified State Department lawyer reportedly argued,
"There is
no such thing as a non-covered person under the Geneva Convention. It's
nonsense. The protocols cover fighters in everything from world wars to
local
130 THE NEW INQUISITIONS
rebellions."s But even as cogent rebuttals to this "state of exception"
were being
written, the decision had already been made. On 8 January 2002, George
W.
Bush chose to "suspend the Geneva Convention," despite the advice of
State
Department counsel that he could well be tried later for war crimes.
In a subsequent interview conducted nearly two years later, White House
attorney John Yoo remained adamant in defense of a "state of exception."
"Why
is it so hard for people to understand that there is a category of
behavior not
covered by the legal system?" he said. "What were pirates? They weren't
fighting
on behalf of any nation. What were slave traders? Historically, there
were
people so bad that they were not given protection of the laws. There
were no
specific provisions for their trial, or imprisonment. If you were an
illegal combatant,
you didn't deserve the protection of the laws of war."6 Furthermore,
according to Yoo, Congress doesn't have the power to "tie the
President's hands
in regard to torture as an interrogation technique." He continued, "It's
the core
of the Commander-in-Chief function. They can't prevent the President
from
ordering torture."? Torture and murder-the suspension of all human
rightsare
thus claimed to be the prerogative of American executive fiat alone,
with
no checks and balances from Congress or from the judiciary. Yoo crafted
the
Bush Jr. administration memo of 9 January 2002, which asserted that
neither
the federal War Crimes Act nor the Geneva Convention-that is, neither
American
nor international law-constrains the imperial presidency.8 There is no
clearer instance of a "state of exception" than rendition.
There are alleged to be more than 150 such cases, but the true numbers
can't be known because of government secrecy. The former British
ambassador
to Uzbekistan said that he knew of three such cases of rendition to
Uzbekistan,
where individuals were tortured and sometimes murdered by boiling
water.9
The chief problem faced by the CIA and other government organizations
that
resort to "rendition" is that once they have shipped someone secretly to
another
foreign country and the individual has been tortured, then what? If the
individual
turns out to be innocent, then they have created another enemy, and if
guilty, they cannot draw on what he says in a court of law because of
all their
previous illegal actions to extract the testimony. Thus, some former
agents say,
they have created a "nightmare," an "abomination" that makes it
virtually impossible
to get convictions through testimony even in a military tribunal, let
alone a court of law.
Given this history of "rendition" under his administration, it is ironic
that,
in the inaugural address for his second term, George W. Bush spoke
forcefully
about how the United States stands for "liberty" and against "tyranny"
the
world over. It is particularly dissonant to hear the following words in
that
inauguration speech:
THE AMERICAN STATE OF EXCEPTION 131
We have seen our vulnerability and we have seen its deepest source.
For as long as whole regions of the world simmer in resentment and
tyranny-prone to ideologies that feed hatred and excuse murderviolence
will gather, and multiply in destructive power, and cross the
most defended borders, and raise a mortal threat. There is only one
force of history that can break the reign of hatred and resentment,
and expose the pretensions of tyrants, and reward the hopes of the
decent and tolerant, and that is the force of human freedom. 10
One is uncertain how one "simmers in tyranny." But whose ideologies,
exactly,
"feed hatred and excuse murder"? Would the answer not be both al-Qaeda,
on
the one hand, and the Bush Jr. administration, on the other?
But the most famous lines from this speech are also the most sweeping,
for they call for nothing less than the mission of exceptional America
to rid
the entire world of tyranny. The speechwriters of George W. Bush write,
and
he reads, "So it is the policy of the United States to seek and support
the growth
of democratic movements and institutions in every nation and culture,
with
the ultimate goal of ending tyranny in our world." This is an admirable
goal,
for who favors tyranny except the tyrant? Yet the latent Jacobinism of
the sentence,
its vast revolutionary scope, drew a skeptical reaction even from the
main
speechwriter for Bush Sr., who remarked on her "disquiet" in the Wall
Street
Journal. I L The line calls the United States to action in "every nation
and culture"
-presumably, then, in Communist China and in Pakistan, too, where
authoritarian regimes are propped up by American dollars through trade
or
through direct aid.
Declaration of an exceptionalist America, in this case, follows in the
wake
of the declared state of exception. What makes this rhetoric so
disquieting is
any knowledge of the "state of exception" as enacted by the very same
administration.
With such knowledge, a line such as this one takes on a peculiar
double quality: "The rulers of outlaw regimes can know that we still
believe as
Abraham Lincoln did: "Those who deny freedom to others deserve it not
for
themselves; and, under the rule of a just God, cannot long retain it."
Of course,
the freedom denied to those subjected to the "state of exception" is
justified
because they are, in the simple phrasing of Carl Schmitt, "enemies," not
"friends." Yet, what if some of them are not enemies, only bystanders?
And in
any case, whose is the "outlaw regime"? Echoing Dostoevsky's The
Possessed,
George W. Bush proclaims "we have lit a fire as well-a fire in the minds
of
men."J2 He did not know, and his speechwriters evidently did not care,
that he
was citing Dostoevsky's depiction of Bolshevik revolutionaries whom the
great
Russian writer saw as possessed.
132 THE NEW INQUISITIONS
I do not intend to argue, here, what has been pointed out by various
conservative
and libertarian critics-that the behavior of the Republicans in power
in Washington, D.C., resembled fascism more than a little.13 Rather,
I'll leave
such comparisons for others, or perhaps for another time. On the face of
it,
the call for America to rid the entire world of tyranny and to establish
freedom
everywhere is well and good. Yetsuch rhetoric overlooks the gulags and
secret
prisons around the globe where (under the auspices of the very same
administration!)
men are imprisoned and where some, through secular "rendition,"
are tortured and murdered. To "go abroad, in search of monsters to
destroy"
may sound thrilling, but surely there was a reason that John Adams and
George
Washington so famously warned against such foreign adventures. Would
Washington really have approved of "rendition"?
Such policies were defended on the editorial pages of the Wall Street
Journal,
on the general principle I suppose that diminishing or abrogating
individual
human rights is a small price to pay in order to maintain a stable
business
environment. Thus, the editors wrote that "The Pentagon could close
Guantanamo
tomorrow, and the critics would quickly find other antiterror policies
to deplore: military commissions, or the 'rendition' of terror suspects
to third
countries, or interrogation techniques, or something else." Not that
there's
anything there Americans ought to deplore. They continued: "Someone in
the
Administration ought to point out that these measures are designed to
prevent
the next terror attack-which, ifit ever comes, could prompt a bipartisan
crackdown
on civil liberties that would make Guantanamo look like summer
camp."!4A crackdown on whose civil liberties? American citizens?
Criminalized
dissent and internal gulags suddenly seem not so totally far-fetched.
Consider the following, taken from a partisan Republican weblog
calledand
here again I am not kidding-"Moonbat Central." An ardent high school
teacher named Michael Calderon published a blog entry that included the
following speculation concerning what might happen if terrorists set off
a lowyield
nuclear weapon in the United States. He writes:
Expect heavily armed and infuriated conservatives to launch a
cleansing war against the traitors. The armed will mow down the
mostly unarmed segments, especially those elements that devoted
forty-plus years to anti-American hatred to destroy this country.
Should the likes of Noam Chomsky, Howard Zinn, Michael Parenti,
Michael Moore, Ward Churchill, Dennis [sic) Raimondo, et al. act
out their sedition in a just-nuked America, expect their bodies to be
found shot full of holes. Expect gun battles at banks, food stores,
THE AMERICAN STATE OF EXCEPTION 133
ATMs, gas stations, and outside hospitals. Leftist professors will be
strung up. It will be every man, woman, and child for themselves.1S
What a charming vision of an American future-so full of good will toward
all. My point is that rancorous scapegoating like this would have to be
more
widespread among the populace in order to "justify" gulags and
criminalized
dissent.
It is all too easy to demonize others: the twentieth century, if it
taught us
anything, should have taught us that. Hence, it is at least worth noting
the
intellectual origins of these very real early-twenty-first-century
American policies
and apparent objectives, as well the rhetoric that accompanies and seeks
to defend such policies. The intellectual genealogy we have considered
throughout this book-from Tertullian's heresiology, through the
establishment
of the Inquisition, through the eighteenth-century and nineteenthcentury
calls for an authoritarian state, right through to the secular
inquisitions
of communism and fascism-does have a certain relevance not only for
understanding
the history of the Bush Jr. administration but also more broadly
for how some elements of totalitarianism can appear within what at least
appears
to be a constitutional republic or a parliamentary democracy.
I do not doubt that those who defend "rendition," and torture, just as
those
who institute such policies, are initially at least, perhaps motivated
by good
intentions. They are convinced of their own rectitude, certain that
their vision
of the world is the right and only one, that its light must fill every
cranny, that
they must light a fire in the minds of men, and perhaps along the way
must
bum a heretic or two, or a thousand, or a million. Why? Because just
around
the comer is a secular millennium. But to reach that millennium, as Vice
President Richard Cheney memorably put it, on a Sunday morning talk show
called Meet the Press, the government needed to "work through, sort of,
the
dark side." "And so," he continued, "it's going to be vital for us to
use any
means at our disposal, basically, to achieve our objective."'6 To reach
the imagined
secular millennium, to reach the true communist state, to reach the
Third
Reich, to reach utopia, even, apparently, to selectively eliminate
tyranny, we
must "work through, sort of, the dark side." Isn't that, in the end,
what they
all say?
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