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Beyond Norm and Exception: Guantánamo

Author(s): Nasser Hussain
Source: Critical Inquiry, Vol. 33, No. 4, On the Case<break></break>Edited by Lauren Berlant
(Summer 2007), pp. 734-753
Published by: The University of Chicago Press
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Beyond Norm and Exception: Guantánamo
Nasser Hussain

The normal proves nothing, the exception proves everything.

—Carl Schmitt, Political Theology (1922)
The right of the Sovereign now presents itself as the counterpart of a power that exerts
a positive influence on life, that endeavors to administer, optimize and multiply it,
subjecting it to precise controls and comprehensive regulations. Wars are no longer
waged in the name of the sovereign who must be defended; they are waged on behalf of
the existence of everyone.
—Michel Foucault, The History of Sexuality (1976)

The two epigraphs to this essay neatly capture the arc of its argument.
The first is by the Nazi constitutional theorist, Carl Schmitt.1 At first glance,
Schmitt seems to be no more than heir to a system of representation, as-
cendant from the eighteenth century onwards, which finds truth and proof
in examples—in outstanding cases and exemplary conditions. But a closer
look reveals something more, something totalizing in Schmitt’s argument.
The exception is no longer a singular example of a larger system, no longer
an analytic category, as it was even in Schmitt’s earlier work, but is now a
fundamental, almost existential category. For Schmitt’s own intellectualand
political purposes this makes sense; if the space of the exception is limitless,
then so too is the sovereign power that governs it when law has withdrawn.
But for contemporary critics to accept Schmitt’s characterization of the ex-
ception would be to accept his willful misconstruction as a self-evidentfact.2
This is where the second epigraph of the essay functions as a necessary re-
minder and corrective. Throughout much of his work, Michel Foucault
draws our attention to the proliferation of regulations and tactics that char-
acterize the governmentality of the modern state and the operation of mod-
ern power. I want to remind us of this hyperlegality by examining the
emergency regime that has operated since September 11, in general, and the

This essay was first presented as a talk in 2005 at the University of Southern California;
I want to thank David Lloyd for the invitation and for his continuing support and intellectual
inspiration. Also many thanks to Lauren Berlant.
1. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans.
George Schwab (Chicago, 2005); hereafter abbreviated PT.
2. For the controversy over Schmitt, including how far his Nazi politics influenced his writings,
see Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor,
Mich., 2003), p. 15.

Critical Inquiry 33 (Summer 2007)

䉷 2007 by The University of Chicago. 0093-1896/07/3304-0007$10.00. All rights reserved.


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Critical Inquiry / Summer 2007 735
role of the detention camps at Guantánamo Bay, Cuba, in particular. To be
clear from the outset: I am not arguing that the exception can and must be
subject to laws. Rather, I hope to make the slightly stronger claim that the
exception as it has historically and theoretically been understood, as a sus-
pension of regular law, even a space of nonlaw, no longer exists. That is,
traditionally an emergency or exception, at least as an ideal type, operated
by suspending regular law and utilizing a range of maneuvers that were both
temporary and specific in order to confront a given situation.3 Today most
emergency laws are neither temporary nor categorically distinct from a
larger set of state practices. As Oren Gross emphatically puts it, “bright-line
demarcations between normalcy and emergency are all too frequently un-
tenable, and distinctions between the two made difficult, if not impossible.
In fact, the exception is hardly an exception at all.”4 Indeed, most contem-
porary “exceptional” laws seem to deserve that appellation to the extent that
they are occasioned by an exceptional circumstance (such as the attacks of
9/11). While such an analysis may more easily apply to a range of emergency
laws, it may seem, at first glance, to be distinctly inapplicable to the more
extreme situation at Guantánamo. And yet, as I shall show, many of the
mechanisms and justifications we find there are continuous and consonant
with a range of regular law and daily disciplinary state practices, in partic-
ular, the domains of immigration and domestic incarcerations—the dif-
ference being one more of degree than kind. Needless to say, such an
alignment does not mean that what is happening at Guantánamo is in any
respect legitimate or moral. Such a perspective, however, does reveal not
only the limitations of the concept of the exception in understanding con-
temporary governance but also the limits of the law as a response to an
increasingly repressive and undemocratic sovereignty.
The role of Guantánamo in the post-9/11 war on terror is based on a
presidential order of 13 November 2001, issued the very day the Northern
Alliance took control of Kabul in the war in Afghanistan.5 Indeed, there may
3. For reasons of clarity and concision, I use the terms emergency and exception interchangeably,
emphasizing the definitive qualities of temporariness and suspension. There is, however, a more
elaborate topographical argument that could be made: emergency is emergent from within the
law, while the exception is placed more distinctly outside the law. For more on the distinction
between exception and emergency see Giorgio Agamben, State of Exception, trans. Kevin Attell
(Chicago, 2005), pp. 9–10, and Hussain, The Jurisprudence of Emergency, pp. 20–21.
4. Oren Gross, “Chaos and Rules: Should Responses to Violent Crises Always be
Constitutional?” Yale Law Journal 112 (Mar. 2002): 1011.
5. See U.S. White House, Presidential Order, Detention, Treatment, and Trial of Certain Non-
Citizens in the War against Terrorism, 13 Nov. 2001,

Na s s e r Hu s s a i n is an assistant professor in the Department of Law,

Jurisprudence, and Social Thought at Amherst College. He is the author of The
Jurisprudence of Emergency: Colonialism and the Rule of Law (2003).

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736 Nasser Hussain / Guantánamo
well have been no clear prior plan to make Guantánamo the detention camp
of choice, but with the fall of Kabul the need for some place to hold what
would become hundreds of prisoners soon became apparent. By 2002, some
six hundred sixty men of forty different nationalities were housed at Camp
Delta. While some prisoners have been released, some with forced assur-
ances from their home governments of continued detention, approximately
five hundred detainees remain, and as if more were expected, Congress has
approved over 200 million dollars for the construction of new cell blocks
complete with execution chambers.6 While the Supreme Court has declared
the administration’s rules constituting military tribunals illegal, Congress
has since provided additional legislation with the Military CommissionsAct
of 2006.7 It is, however, a virtual certainty that some if not most of its pro-
visions will be further litigated.8
This essay, however, is not really about these legal wranglings or the fu-
ture status of Guantánamo, both of which remain complicated and in flux.
Guantánamo may stay or go, the condition of its inhabitants may improve
or worsen, but one thing is certain: it has become and remains shorthand
for a larger set of formations. Thus underneath the question of what goes
on at Guantánamo, what interrogations and excesses, is the more abiding
question: What is Guantánamo? The difficulty in answering that seemingly
simple question stems from two distinct but not unrelated formations. The
first has to do with what I shall call the historicity of Guantánamo, the sec-
ond, with the paradigm under which it has come to be understood.
An inaccessible camp on a Caribbean island certainly invokes colonial
imagery. Indeed, Guantánamo has been compared to Devil’s Island, a black
hole, and a gulag. But each of these names designates not just a site of atroc-
ity but also a particular and changing combination of geopolitics, law, and
sovereignty. In order to focus the question I ask about Guantánamo, let me
draw attention to the various arguments that were offered to the Supreme
Court in Rasul v. Bush, urging it to allow the habeas corpus petitions of the
detainees access to the U.S. courts. In a significant case such as Rasul, there
are often dozens of amicus briefs, but here I want to mention two in par-
ticular. The first is the “Amicus Brief of Legal Historians,” which empha-
sized the historical “vastness of the Great Writ’s reach” and drew on

20011113-27.html. While this order authorized the indefinite detention, it was not till a month later
that it was publicly confirmed that Guantánamo was the chosen site for the detention.
6. See “U.S. Plans Permanent Guantánamo Jails,” The Guardian, 3 Jan. 2005. For the Circuit
Court decision, see Hamdan v. Rumsfeld 344 F. Supp. 2d 152 (D.C. Cir. 2005).
7. See Hamdan, 344 F. Supp., at 206.
8. See “Senate Approves Detainee Bill Backed by Bush; Constitutional Challenges Predicted,”
Washington Post, 29 Sept. 2006.

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Critical Inquiry / Summer 2007 737
eighteenth-century English cases that confronted the new colonial situation
and demanded that the newly acquired dominions be subject to the juris-
diction of the judges of the King’s Bench. Thus the brief insisted that Guan-
tánamo in this sense represented nothing new, that “the historical evidence
(suggests) that the common law writ of habeas corpus, known to the fram-
ers and incorporated into the suspension clause of the Constitution would
have been available to challenge the enemy status of individuals detained in
a territory like Guantánamo.”9 The second is the “Amicus Brief of Inter-
national Law and Jurisdiction Scholars,” which emphasized new and chang-
ing global conditions. Amongst these new conditions are the twin facts that
while on the one hand the U.S. and its allies are “building a global criminal
law system” on the other hand the numerous human rights conventions of
the past half century have come to constitute a “global common law.”10
Between these two amicus briefs we have two equally persuasive but po-
tentially incommensurable arguments. While the first places Guantánamo
in a larger history, the second emphasizes the novel conditions it represents.
Between these two sets of arguments, we are thus forced to ask whether what
we are witnessing with Guantánamo is old or new.
Looked at as an old problem, Guantánamo points to a long history of
imperial powers carving out spaces on the globe not only for their military
and geopolitical needs but also as depositories for their “dangerous classes.”
While these spaces were hubs of administrative activity, they were often
claimed to be outside the law and constitutional arrangements of the col-
onizer (a claim, it is important to note, that was resisted even in the eigh-
teenth century).11 What is new about what Guantánamo represents comes
from the last half century of human rights treaties and conventionsdesigned
to give all human beings some status, even if they find themselves in one of
these colonial enclaves.
Guantánamo itself is a space created by what is, in fact, a familiar colonial
artifact—the unilateral treaty imposed by one sovereign power on another.
Such a colonial origin, however, should not lead us to conclude, as is argued
by the United States government, that Guantánamo is and always has been
a space beyond regular law, for such a treaty also, by definition, stipulates
basic jurisdictional parameters. Article 4 of the 1903 Lease to the United

9. Brief Amici Curiae of Legal Historians Listed Herein in Support of the Petitioners, in Rasul v.
Bush and Odah v. United States 124 S. Ct. 2686 (2004), 03–334, 03–343, p. 3.
10. Brief of International Law and Jurisdiction Professors as Amici Curiae in Support of the
Petitioners, in Rasul v. Bush and Odah v. United States 124 S. Ct, 03–334, 03–343, pp. 4, 11.
11. The more famous opinion on this point is Lord Mansfield’s rejection in Mostyn v. Fabrigas
of the “monstrous proposition” that a governor-general appointed by the monarch to a territory
outside the realm could not be tried in an English court (Mostyn v. Fabrigas 98 E.R. 1029 [King’s
Bench 1774]).

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738 Nasser Hussain / Guantánamo
States by the Government of Cuba of Certain Areas of Land and Water for
Naval or Coaling Stations in Guantánamo and Bahia Honda, for example,
states that “the Republic of Cuba agrees that fugitives from justice charged
with crimes or misdemeanors amenable to U.S. law committed within said
territories, taking refuge in Cuban territory, shall on demand, be delivered
up to duly authorized U.S. authorities.”12 The naval base at Guantánamo
was acquired almost simultaneously with the Panama Canal Zone. There,
by 1903, the United States, unable to force the then-sovereign state of Co-
lombia to accede to its wishes, supported a Panamanian secession move-
ment and promptly constructed a treaty that gave the U.S. all “rights, power
and authority” for a ten-mile zone of the canal, which the U.S. would con-
trol as “if it were sovereign” to the complete exclusion of any similar au-
thority by Panama.13 What is typically colonial about these arrangements
is not that they claim a space is beyond law but rather that a space is between
laws, in the interstices of multiple legal orders. What is claimed is a mixture
of laws and legal orders that both ties the space to the metropole and yet
demands that it be free of some legal constraints.
One of the clearer examples of such a reasoning is an 1870 case from
colonial India, In the Matter of Ameer Khan, in which a judge found that
while he could not countenance the government’s argument that no rules
and rights applied to the colony (such regulations, after all, make up the
very structure of modern governance), he could affirm a more permanent
version in India of the temporary exceptional powers permitted by the Brit-
ish constitution in England.14 This permanent state of emergency although
ostensibly illogical (emergency by definition is not supposed to be per-
manent) does offer a valuable clue to deciphering Guantánamo; the juri-
dification and bureaucratization of modern governance means that not
only are there no empty spaces in law but that the invocation of multiple
legal orders is itself a particular form of disciplinary rule.
Indeed, in Rasul v. Bush, the government’s position exploited such a mix-
ture, on the one hand claiming the particular exigencies of a military base
and, on the other, insisting that habeas corpus could not be available as the
United States was not even the ultimate and de jure sovereign of the ter-
ritory, that title belonging to Cuba.15 In the very first bout of legal argu-

12. Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for
Naval or Coaling Stations in Guantánamo and Bahia Honda, (1903),
13. Isthmian Canal Convention: Convention between the U.S. and Panama, (1903), www.
14. In the Matter Of Ameer Khan 6 Bengal Law Reports 392 (1870). Also see Hussain, The
Jurisprudence of Emergency, pp. 92–94.
15. See Rasul v. Bush 124 S. Ct. 2686 (2004).

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Critical Inquiry / Summer 2007 739
ments, Guantánamo emerged less as a legal black hole and more as a legal
loophole.16 The question of old or new is thus not just a semantic one as at
the very least it draws our attention to the web of administrative legality of
which the camp is a part but which is so characteristic of the late modern
Such an administrative legality, or rather the nonrecognition of it, leads
me to the second difficulty in deciphering Guantánamo: the ascendancy if
not near monopoly of a single theoretical paradigm, that of the state of
exception. The idea that a situation of factual danger validates the tempo-
rary suspension of regular law has existed in various guises—martial law,
the state of siege, the state of exception—since the nineteenth century.
While different legal traditions would understand and answer the question
of emergency variously—the great English constitutional authority of the
nineteenth century, Albert Venn Dicey, for example, would claim that
the English system of martial law under common law was better than the
French legal mechanism of a “state of siege”—the one common character-
istic of all emergency powers was the insistence that such powers be bound
in space and time. There were various mechanisms that could be used to
temporally and/or spatially enclose exceptional powers.17 In the Anglo-
American common-law tradition, there are rules that seek to contain the
emergency powers of the executive, some of which are of particular interest
today as they relate to the use of military tribunals. Thus since the Petition
of Right it was held that military tribunals would be permitted only in times
of war.18 But, well before the current war on terror and its potentiallyendless
operations, the question of what would legitimately constitute wartime, be-
yond the fact that the executive simply claimed it to be so, was a constant
and recurring concern. The criterion that defined what counted as wartime
was whether the civilian courts could physically sit and operate—whether
the judge could literally get to the courthouse or not. Everyone recognized,
of course, that there was an element of artificiality to such a rule but felt
that it was necessary to place some conditional limits on what would oth-
erwise be an open-ended state-of-war justification.19 Thus the more famous
16. Gerald Neuman considers Guantánamo a “black hole” and as a “loophole” (Gerald L.
Neuman, “Closing the Guantánamo Loophole,” Loyola Law Review 50 [2004]: 1, 3).
17. See A. V. Dicey, Introduction to the Study of the Law of the Constitution (London, 1897), p.
270, and Hussain, The Jurisprudence of Emergency, p. 21.
18. The Petition of Right granted by Charles I in 1628 restricted the Crown’s interference in the
judicial process to times of war. For more on the history of this legal tradition, see Hussain, The
Jurisprudence of Emergency, p. 108 n. 12, p. 168 n. 12.
19. A sustained rather than symptomatic analysis of Agamben would, of course, have to take
into account his use of the exception in his earlier work, Homo Sacer, something I have done
elsewhere. See Hussain and Melissa Ptacek, “Thresholds: Sovereignty and the Sacred,” Law and
Society Review 34, no. 2 (2000): 495–515.

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740 Nasser Hussain / Guantánamo
of such wartime measures, which I shall address a little later, the suspension
of habeas corpus, involved not merely a decision and a suspension but an
operation that operated by jurisdiction on a spatially enclosed population
for a preset period of time.
By the twentieth century with the British Defense of the Realm Act the
common-law and statutory traditions began to merge.20 In the United
States, the discussion of emergency became less a dispute over whether the
executive or legislative branch has ultimate authority and by World War
One became more a coordination of executive decisions and legislative en-
actments. But, more importantly for our purposes, it was in the early de-
cades of the twentieth century that Schmitt transformed the discussion of
exceptional conditions by making its decision by a personalized sovereign
key to his conception of sovereignty, a conception succinctly caught in his
now infamous designation: “sovereign is he who decides on the exception”
(PT, p. 5).
While Schmitt’s work offers a profound challenge to the sometimes easy
assumptions of a liberal constitutionalist order, the difficulty in using the
theoretical paradigm of the state of exception is that its specific substantive
and connotative associations are ones of decision and declaration, abeyance
and suspension, and an emptying out of set rules from governance. But this
is all at odds with the proliferation of regulations and administrative pro-
cedures that mark the daily management of contemporary crises. Even at
Guantánamo, which seems such a clear example of a camp that is an ex-
tralegal zone, subject only to executive decree, we find not an emptying out
of law but an abundant use of technical distinctions, differing regulations,
and multiple invocations of authority. It is in this sense in particular that
one may object to one of the more popular readings of Schmitt and the state
of exception: Giorgio Agamben’s State of Exception.
Agamben’s writings are complex and far ranging, and it is not my inten-
tion here to make them the focus of any sustained criticism. They are, if
anything, for me here an example of a larger approach that too readily places
Guantánamo as an exceptional case and hence without law, even a space of
“lawlessness.” Agamben insists that the 13 November order renders the de-
tainees at Guantánamo a “legally unnamable and unclassifiable being.”21
But such a description does not line up with the profusion of names and
classifications—enemy alien, unlawful belligerent, enemy combatant22—
or with the administrative protocols for producing and determining

20. See Clinton Rossiter, Constitutional Dictatorship (New York, 1963), p. 53.
21. Agamben, State of Exception, p. 3.
22. At first the detainees were termed unlawful belligerents in keeping with the terminology of
a Second World War case, Ex Parte Quirin 317 U.S. (1942). For details on the status of the detainees,

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Critical Inquiry / Summer 2007 741
such status, procedures such as the Administrative Review Procedures for
Enemy Combatants or the Combatant Status Review Tribunals.23 Agamben
does note the diffusion of the exception but seems not to consider either
its historical or theoretical implications. Here, for instance, is Agamben in
State of Exception noting the historical changes in emergency measures at
the time of the First World War, in particular by the time of Woodrow
Wilson’s presidency: “In this regard, his practice of government is closer to
the one that would prevail in Europe in the same years, or to the current
one, which instead of declaring the state of exception prefers to have excep-
tional laws issued.”24 But it seems to me that this is no minor change. What
does it mean to note that we have moved away from declarations of a state
of exception to the more diffuse condition of exceptional laws of all sorts
found throughout the administrative apparatus of the state?
It is empirically the case that what one witnesses in contemporary emer-
gency is a proliferation of new laws and regulations passed in an ad hoc or
tactical manner, administrative procedures, and the use of older laws and
cases tweaked and transformed for newer purposes. But given this almost
hyperlegality, does it then make any sense to continue to use the analytic
idiom of the state of exception? After all, that category invokes a very specific
idiom and imagery: one of exclusion or outsideness, abeyance or suspen-
sion, and of course decision. It is at the very least inadequate to explain the
use of bureaucratic regulations and administrative classifications.
There are a few rejoinders one could level at my argument right away.
The first is that the state of exception does not suspend all law but only a
few relevant ones and so as a model would not be contrary to my attention
to administrative procedures. This is true to some extent, and I am not
claiming that we do not find the suspension of some laws. Rather, I am
claiming that the vast preponderance of emergency measures involves new
regulations, classifications, and additions. A 1982 United Nations report on
emergency legislation was in this sense quite prescient; it noted that states
of emergency were becoming increasingly complex, with a “great number
of parallel or simultaneous emergency rules whose complexity is increased
by the ‘piling up’ of provisions.”25

see Mark Denbeaux et al., Report on Guantánamo Detainees: A Profile of 517 Detainees through
Analysis of Department of Defense Data (2006),
23. See U.S. Department of Defense, Administrative Review Procedures for Enemy Combatants
in the Control of the Department of Defense at Guantánamo Bay Naval Base, Cuba (May 2004),
24. Agamben, State of Exception, p. 21; emphasis added.
25. Quoted in Gross, “Chaos and Rules,” p. 1032 n. 79.

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742 Nasser Hussain / Guantánamo
Perhaps a more serious charge would be that to identify such regulations
and technicalities as law—to dignify the outcomes they facilitate as legal—
is to indulge in the worst kind of legal positivism. Such a charge, of course,
recalls a by now quite old debate in jurisprudence on whether there must
be an inner morality to law or whether one can identify even the Nazis as
having law.26 Here is not the place to begin to resolve this debate, but there
are some important distinctions that somewhat blunt the charge of a legal
positivism. The first is that rule of law is and has always been capable of
accommodating a range of repressive but legal measures. On the one hand,
for a conservative like F. A. Hayek warning after the end of the Second World
War against the unchecked growth of the administrative state, the rule of
law meant the specific restriction of legislative power to general rules known
as formal law.27 But even Hayek admitted that the absence of formal law
was “not to say that actions of government will not be legal or that such a
society will necessarily be lawless.”28 On the other hand, the growth of that
administrative state has been linked to the internal mechanisms within a
rule of law itself, which by focusing on questions of jurisdictional authority
eclipses substantive questions of morality and justice. As Philippe Nonet
showed more than thirty years ago, “the system allows administrators to
develop protected areas where they can exercise discretion without legal
scrutiny: once their authority in such areas is legally confirmed, its use is
free from further control. This is reflected in the often stated principle that
judicial review should be restricted to questions of jurisdiction, and should
not extend to the merits of agency decisions.”29
Critics and scholars routinely identify the growth of the administrative
state, even in Guantánamo and the contemporary forms of emergency in
the United States, as “legalist” rather than “legal,”30 or as a “curious legal-
ism.”31 One can appreciate that these scholars are trying to reach for some
deeper normative meaning here, but the effort flounders for a few specific
reasons. The first is the sheer volume of these regulations and interpreta-
tions. The well-known torture memoranda, parsing the definitions of harm
in order to facilitate extreme interrogation conditions, run into hundreds
of pages. Efforts to distinguish these regulations and justifications as some-

26. See H. L. A. Hart, “Positivism and the Separation of Law and Morals,” Harvard Law Review
71 (1958): 593, and Lon L. Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart,”
Harvard Law Review 71 (1958): 630.
27. F. A. Hayek, The Road to Serfdom (Chicago, 1945), p. 83.
28. Ibid, p. 82.
29. Philippe Nonet, Administrative Justice: Advocacy and Change in a Government Agency (New
York, 1969), p. 5.
30. Diane Marie Amann, “Abu Ghraib,” University of Pennsylvania Law Review 153 (2005): 2126.
31. Ibid, p. 2123.

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Critical Inquiry / Summer 2007 743
thing less than law is unpersuasive because such legal maneuvers are not
exclusively confined to either the exception or the times of crisis it sup-
posedly represents. Consider, for example, Joan Dayan’s astute observation
of the continuity between court decisions over the last two decades that have
eviscerated the Eighth Amendment prohibition on cruel and unusual pun-
ishment and the torture memoranda. The “Rehnquist court’s Eighth
Amendment cases,” Dayan carefully shows, “prepared the ground for the
verbal quibbles, fastidious distinctions, and parsing of definitions that char-
acterize the recent memoranda prepared for the ‘war on terror.’ The legal
decimation of personhood that began with slavery has been perfected in the
logic of the courtroom and adjusted to prisoners. This reasoning—so long
ignored, except by corrections officials who learned how to manipulate legal
language—was carefully studied by the White House lawyers.”32 Or con-
sider the pivotal role of pre-9/11 immigration law in the service of a mass
round-up and preventive detention. As David Cole has noted, even as sec-
tion 412 of the Patriot Act, granting the attorney general broad discretionary
powers, was heatedly debated in Congress, utilizing “tactics, all relying on
preexisting immigration and criminal authority, the same attorney general
was able to effectuate a mass preventive detention campaign without ever
invoking section 412.”33 When the mechanisms that produced Guantánamo
and justified the practices that occur there are used abundantly in the im-
migration service or correctional agencies, when the rationale of these
mechanisms seems of a different degree rather than of a different kind, it is
not clear what it could mean to say they are not quite law.
As I said, it is these mechanisms that I examine here in some detail, fo-
cusing first on the issue of declaration and then the use of classification.
Later I will return to some of the theoretical implications of such practices
that seem to me to have moved us beyond the analytic of norm and excep-
The authority for the creation of the detention center at Guantánamo is
found in the military order of 13 November, 2001, entitled “Detention,
Treatment, and Trial of Certain Non-Citizens in the War against Terror-
ism.”34 While this order does offer some details as to the criteria of enemy
combatants and the use of military tribunals, the executive authority it in-
vokes for the creation of the camps is simply a repetition of an earlier proc-
lamation of 14 September 2001, Declaration of National Emergency by Reason

32. Joan Dayan, “Cruel and Unusual: The End of the Eighth Amendment,” Boston Review
(Oct.–Nov. 2005): 12,
33. David Cole, “The Priority of Morality: The Emergency Constitution’s Blind Spot,” Yale Law
Journal 113 (2003–4): 1778.
34. See Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism.

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744 Nasser Hussain / Guantánamo
of Certain Terrorist Attacks.35 But even at this point we do not find a sus-
pension of the law but merely the activation of certain statutory powers for
the calling up of military and coast guard reserves.
In September 2001, Congress granted a more explicit authorization to
the president. The Authorization for Use of Military Force, as it is called,
authorizes the president to “use all necessary and appropriate force against
those nations, organizations and persons he determines planned, author-
ized, committed or aided the terrorist attacks” or “harbored such organi-
zations or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations or per-
sons.”36 You will note the capaciousness that marks this declaration, as it
calls for both the punishment of past occurrences and the prevention of
similar ones. It seems to be and has been read as both a declaration of war
and a declaration of emergency; it has been invoked as the authority for a
great range of activities, from the war in Afghanistan and the creation of
Camp Delta in Guantánamo to, more recently, domestic wiretapping with-
out court authorization. If the AUMF blurs emergency powers and war
powers, it is perhaps no surprise that it has so easily been construed as au-
thorizing interrogation of enemy combatants. It is the AUMF that makes
possible the construction of Guantánamo as both a war camp and an im-
migration jail of sorts, holding noncitizens in the interests of national se-
curity. As the U.S. District Court noted, “detainees at Guantánamo Bay who
are presently seeking habeas relief in the United States District Court for
the District of Columbia include men who were taken into custody as far
away from Afghanistan as Gambia, Zambia, Bosnia and Thailand. . . . Many
of these individuals may never have been close to an actual battlefield.”37
But while a decision on the exception seems hard to find, the internal
operations in a supposed space of exception reveal not a suspension of law
but an intensification of an administrative and bureaucratic legality, par-
ticularly in the use of classifications. The invocation and use of classifica-
tions in general and the category of enemy combatant in particular is well
illustrated by the story of one of Guantánamo’s more famous if short-term
detainees, Yusuf Essam Hamdi. Born in Louisiana in 1980, Hamdi moved
to Saudi Arabia as a child with his family. By 2001 he was in Afghanistan,
where he was seized by the Northern Alliance and turned over to the United

35. Declaration of National Emergency by Reason of Certain Terrorist Attacks, 66 F. Reg. 48199
36. Authorization for Use of Military Force against September 11 Terrorists, Public Law 107–40, 115
Stat. 224 (2001).
37. In re Guantánamo Detainee Cases 355 F. Supp. 2d 443 (D.C. Cir. 2005).

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States. The military moved him to Guantánamo in January 2002 and upon
learning he was a U.S. citizen moved him to a naval brig in South Carolina
that April. At first the government used the term enemy alien for the de-
tainees, but when it came to light that at least one of the detainees was not
an alien, it shifted to enemy combatant.38
As to the meaning of enemy combatant, even the Supreme Court tried to
gently suggest “there is some debate as to the proper scope of this term, and
the government has never provided any court with the full criteria that it
uses in classifying individuals as such.”39 The Court’s opinion in the case,
however, beyond its ability or incapacity to decipher this category, is inter-
esting for our purposes to the extent that it rather explicitly contrasts an
older conception of spatially and temporally bound emergency powers with
newer, more labile forms. Thus Justice Sandra Day O’Connor rather mod-
erately splits the difference between the government’s interests and Hamdi’s
constitutional rights: the Court insists that “the process due in any given
instance is determined by weighing ‘the private interest that will be affected
by the official action’ against the Government’s asserted interest” (H, p.
Known as the Matthews Test in due-process litigation, such a balancing
act is quite usual, but in using it here, speaking for the plurality decision in
the case, O’Connor elides crucial distinctions. First, Hamdi was not charged
with ordinary criminal activity but with aiding the enemy in war, which is
the charge of treason, and, second, even the government at least in part
claimed that the power to hold him derived from the executive branch’s
plenary powers to conduct war. Thus, on the other side of the Court, we
find a rejection of O’Connor’s reasoning through the explicit invocation of
an emergency power that is temporally and spatially circumscribed and that
the government according to the dissent exceeds in the Hamdi case. Thus
Justice David Souter points out that even if the Executive could detain a
citizen during the emergency situation of an invasion, “this case, however,
does not present that question, because an emergency power of necessity
must at least be limited by the emergency: Hamdi has been locked up for
over two years” (H, p. 2659). This older conception of a state of exception
is at the forefront of the opinion that brings together the Court’s most con-
servative and most liberal members. Justices Antonin Scalia and John Paul
Stevens remind us that there is a traditional and constitutional answer to
the government’s professed need to hold Hamdi without charge: the sus-
pension of the writ of habeas corpus. Justice Scalia, of course, strictly limits

38. See Ex Parte Quirin.

39. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2639 (2004); hereafter abbreviated H.

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746 Nasser Hussain / Guantánamo
this rationale to U.S. citizens. Thus, in Rasul, he vehemently objects to the
extension of habeas corpus to the Guantánamo detainees. The Rasul de-
cision does permit a very narrow statutory extension of habeas, of a chance
for a hearing, but does not stipulate what if any rights and protections such
a hearing would allow. Even so, it seems that when it comes to checking
executive power the court’s approach is stricter than Justice Scalia’s in Rasul
but more lax in Hamdi. These two cases, however, are better understood as
eclipsing an older vision of emergency with one that extends the reach of
law, but not of full legal protection, and one that validates in law an am-
biguous and evolving classification of persons. It is not, of course, difficult
to imagine why the government would choose to classify individuals as op-
posed to suspending wholesale the rights for a given territory. The suspen-
sion of the writ is by territorial jurisdiction and subjects all within that space
to the suspension, whereas the use of classification allows the targeted re-
moval of individuals. The Court then in demanding that the government
submit the process by which the classification is used but not proscribing
the use of classifications in this context altogether, does, despite surface ap-
pearances, very little. Such a conclusion is, of course, contrary to much of
the press coverage at the time and some (though not all) of the scholarly
response to the Court’s opinion. Benjamin Wittes notes that while “the
dominant view saw the cases as a major defeat for President George W.
Bush . . . a dissident analysis of the cases, however, quickly emerged as well
and saw them as a kind of victory for the administration dressed up in
defeat’s borrowed robes.40
The classification enemy combatant is certainly the most famous and has
garnered the most attention, but there are other classifications that have
also been used to detain people without charge. Here we need only turn to
the activities of the Immigration and Naturalization Service following the
attacks of September 11. Although the Bush administration repeatedly
boasts that there have been no World-War-Two-like roundups or intern-
ments, here are some sobering numbers: in addition to the 1200 people de-
tained immediately after 9/11, a year and a half later the INS detained some
1110 people in connection with its Absconder Apprehension Initiative Pro-
gram and Special Registration Program.41
The Office of the Inspector General launched an investigation in 2003
into the detention post-9/11 of some 762 individuals classified as “Special
Interest” cases for an average of eighty days without access to family or legal

40. Benjamin Wittes, “Judicial Baby-Splitting and the Failure of the Political Branches,” in
Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases, ed. Peter
Berkowitz (Stanford, Calif., 2005), pp. 101–2.
41. See Mark Dow, American Gulag: Inside U.S. Immigration Prisons (Berkeley 2004), pp. 25–26.

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counsel. The investigation reviewed “the reasons why many of the detainees
experienced prolonged confinement,” as well as “allegations of physical or
verbal abuse.”42 In particular the report examines the INS/FBI policy of
“hold until cleared.” What is striking in this report is the self-conscious use
by the agencies of a legalism in order to achieve prolonged detentions and
interrogations. In this regard, the report notes the new focus of the De-
partment of Justice, summarized by then Attorney General John Ashcroft,
in a speech on 25 October 2001:
Robert Kennedy’s Justice Department it is said would arrest mobsters
for “spitting on the sidewalk” if it would help in the battle against orga-
nized crime. It has been and will be the policy of this Department of
Justice to use the same aggressive arrest and detention tactics in the war
on terror. Let the terrorists among us be warned: if you overstay your
visa—even by one day—we will arrest you. If you violate a local law, you
will be put in jail and kept in custody as long as possible. [“OIG,” p. 12]
Notice how difficult it is to reconcile the “spitting on the sidewalk” strat-
egy with the state of exception. That is because such a strategy does not rely
on any extraordinary measure, which could be identified as belonging to
an exception/emergency regime, but rather accelerates the application of
preexisting, often mundane regulations. Thus under the so-called immi-
gration reform of the late 1990s, the attorney general received broad dis-
cretionary authority to detain and hold foreign nationals charged with
immigration violations no matter how small if he determined them to be
a flight risk or a danger to the community.43 The post-9/11 detentions can
be traced back to a pre-9/11 piece of legislation, the Illegal Immigration Re-
form and Immigrant Responsibility Act of 1996, signed into law by Presi-
dent Clinton.44 The act erased some long-standing distinctions between
proceedings to exclude “illegal” immigrants who unsuccessfully sought en-
try and were subject to immediate detention and the deportation proceed-
ings of permanent residents and others legally in the U.S. on work and other
visas; both are now called removal proceedings. The act requires the INS to
take foreign nationals into custody for up to ninety days pending depor-
tation but also gives the INS and the attorney general discretionary power

42. U.S. Department of Justice, Office of the Inspector General, The September 11 Detainees: A
Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation
of the September 11 Attacks (2003), p. 4,; hereafter
abbreviated “OIG.”
43. On this and other uses of immigration law, see Cole, Enemy Aliens: Double Standards and
Constitutional Freedoms in the War on Terror (New York, 2005), p. 30 and “Enemy Aliens,”
Stanford Law Review 54 (2001–2): 953, 962.
44. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, U.S. Code 8 (1996),
§ 1231 (a) (6).

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748 Nasser Hussain / Guantánamo
to hold people beyond ninety days if they deem it necessary. The post-9/11
legislative changes simply extended that already-existing authority.
But there was and continues to be a blindness (whether willful or not)
on the part of liberal policy makers and press to the long-term structural
conditions that allowed the post-9/11 repressions. While sympathetic to the
plight of the detainees and their families, a columnist insisted in an exon-
erating tone that “after all (the justice department) was establishing a
detention system virtually from scratch.”45 This is, I think, a powerful il-
lustration of the legitimating and justificatory power of the idea of emer-
gency. It is a discourse that suggests that a crisis, after all, requires haste and
forces good people to do bad things. But while the media may ignore the
structural conditions of immigration law in daily “emergency” operations,
at least one federal judge has ruled that it is precisely immigration regula-
tions and not the claim of emergency and extraordinary powers that permit
the government to detain foreign nationals indefinitely.46
Equally striking in the OIG report is the detailing of the way in which
lists initially generated for workaday use end up becoming self-fulfilling
classifications of danger. The investigative tool of a list of persons of interest
quickly became an administrative classification and generated lists for the
FBI and the INS. The OIG report does concede that there were many com-
plexities as to how an individual would end up on the special interest list,
but once classified as such he faced new and distinct consequences: “being
labeled ‘of interest’ had significant ramifications for the detainees place and
length of detention” (“OIG,” p. 14).
What are we to make of such classifications? They are, of course, not just
descriptions of a condition, as their application unleashes immediate and
terrible consequences. To that extent, they are performative speech acts, as
when a judge pronounces an individual guilty. But neither are they judg-
ments. Indeed, the term preferred by those who implement it is determi-
nation. These determinations lie somewhere between a categorization and
a judgment. To call them lawless is, I think, not quite accurate, as that term
overlooks the way in which such administrative determinations saturate
contemporary legal life. For example, inmates in prisons who allegedly be-
long to gangs are classified as “security-threat groups.” Such a classification
can produce the horrible result of solitary confinement for up to twenty-
three hours a day in a windowless cell. As Dayan notes, “if you can claim
that classification is not punitive, not disciplinary, but merelyadministrative,

45. Quoted in Dow, American Gulag, p. 14.

46. See Nina Bernstein, “Judge Rules That U.S. Has Broad Powers to Detain Noncitizens
Indefinitely,” New York Times, 15 June 2006,

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Critical Inquiry / Summer 2007 749
then something called ‘administrative segregation’—even if it means in-
definite isolation in solitary—is not subject to judicial review.”47 Yet these
classifications do not belong to a normative system. They draw on no norm
nor are they capable of generating one. Instead, they are sui generis—tac-
tical moves that are made and remade in order to fulfill a particular goal.
The attention to the use of immigration law and separate immigration
courts and tribunals does offer one final insight into deciphering Guantá-
namo. It points to a desire for and an attempt at a zone that operates not
as an exception but as a parallel in a modern administrative legality. Even
before the current invocations of emergency, immigration law was emerg-
ing as the site where the everyday workings of an administrative legality and
the “extraordinary” requirements of national security were beginning to
blur beyond recognition. Thus while it may seem a stretch to move from
the intricacies of immigration-law classifications and detention pendingde-
portation to the status of the Guantánamo detainees and the horrific in-
terrogation practices, the distance is in fact not a large one. For one thing,
among the detainees in Guantánamo, there are individuals who have been
declared non–enemy combatants, but due to their stateless status continue
to languish in Guantánamo, as they would in any immigration jail in the
United States. There are at least a dozen ethnic Uighers currently detained
at Guantánamo. A Muslim minority in the northwest of China, the Uighers
are persecuted by the Chinese government and have frequently found in-
formal refuge in Afghanistan and Pakistan. Some of the Uighers at Guan-
tánamo ended up there, as did many of the other detainees, because the
American authorities were duped by bounty seekers. In the case of the Ui-
ghers, however, the U.S. government itself claims that the men are non–
enemy combatants. Not wishing to parole them into the country and unable
to send them back to China, the United States continues to hold them in
To reiterate, then, my effort so far has been to draw attention to the use
of classifications, to the discretionary zone of agencies and their operations,
and to the thorough commingling of norm and exception, ordinary regu-
lations and exceptional powers, which make up the one common and
blurred zone of governmentality. It is from this zone that Guantánamo
emerges. This is not to suggest that all outcomes and all consequences are
the same. The gravity of the label special interest and even the consequence
of prolonged detention pending deportation is not the same as the conse-

47. Dayan, “Cruel and Unusual,” p. 18.

48. See Josh White and Robin Wright, “Detainee Cleared for Release Is in Limbo at
Guantánamo,” Washington Post, 15 Dec. 2005. For details on the current status of such detainees,
see Denbeaux et al., Report on Guantánamo Detainees, p. 21.

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750 Nasser Hussain / Guantánamo
quence of the classification enemy combatant and the resulting interroga-
tions and trial by military commission. But I would insist that we view these
different outcomes on a continuum where norm and exception have finally
and irrevocably blurred. Guantánamo emerges out of the use of technical-
ities and definitional parsing, and through a mixture of executive decree
and legislative authorization. The latter in the form of the AUMF effectively
mixes emergency powers and war powers, thus aligning the classification
of enemy combatant with categories such as special-interest deportees in
immigration proceedings—that is, noncitizens who must be removed be-
cause they are a threat to national security—and sometimes closer to more
conventional belligerents in a theater of war.
And what is to happen in this space created through such a hyperlegality?
Information on the excesses and the inhumanity (although it may turn out
not illegality) of the interrogation procedures is slowly coming to light, but
I shall not dwell on the details here. Instead I want to draw attention to the
way these interrogations are understood by the government. It is now be-
coming clear that constant interrogation, almost entirely without result or
purpose, is the norm at Guantánamo. As Michael Ratner and Ellen Ray have
noted, the government by its own admission conducts over three hundred
interrogations a week. Little wonder then that it requires 2800 soldiers and
civilians to maintain a facility that holds five hundred prisoners. The pur-
pose of the interrogation was captured in an offhand comment made by an
interrogator to CBS News that the detainees were “being kept as a kind of
al Qaida data base to be mined indefinitely.”49 Beyond the illogic of such a
position—how is someone expected to give relevant information on an on-
going operation from which he has been removed for more than three
years?—the statement belies a certain instrumentalization of humanity,
which for me uncannily matches the instrumentalization of law that I have
been highlighting.
Finally, what are some of the implications of the argument that norm
and exception have blurred severely and perhaps irrevocably? Let me stress
that my efforts to draw attention to the ways in which an administrative
legality has made the concept of a state of exception superfluous is not just
theoretical disagreement or just an effort to discredit one particular para-
digm. One may agree or disagree about the continuing validity of a concept,
but my more immediate concern here is that the concept not overshadow
or distort efforts to fashion a newer, fairer, and more just response.
Consider then one such effort to fashion a new response: Bruce Acker-
man’s proposals in “The Emergency Constitution.”50 Ackerman’s essay be-
49. Michael Ratner and Ellen Ray, Guantánamo: What the World Should Know (White River
Junction, Vt., 2004), p. 39.
50. Bruce Ackerman, “The Emergency Constitution,” Yale Law Journal 113 (2003–4): 1029;
hereafter abbrevieated “A.”

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Critical Inquiry / Summer 2007 751
gins with the recognition that attacks on the U.S. similar to 9/11 are almost
a virtual certainty and that without creative new constitutional concepts
each attack will only prompt harsher political measures in a “downward
cycle” (“A,” p. 1044). Dismissing the models currently provided for by war
and crime, Ackerman settles on the concept of emergency and sets out to
find a way to grant and yet control the use of extraordinary powers in the
case of a genuine emergency. For Ackerman, it is time to try to rescue the
concept of a state of exception from fascist thinkers like Schmitt, who used
it as a battering ram against liberal democracy. Ackerman would confine a
genuine emergency to a bounded state (tellingly, the “triggering event” in
Ackerman’s proposals is left entirely uncharted, left to the hope of political
wisdom). But because Ackerman neglects the more dispersed condition of
emergency in contemporary conditions, his proposals hinge on the use of
legislative oversight largely in the form of a “supermajoritarian escalator”:
“majority support should serve to sustain emergency for a short time—two
or three months. Continuation should require an escalating cascade of su-
permajorities: sixty percent for the next two months; seventy for the next;
eighty thereafter” (“A,” p. 1047). While such a sensible and even workable
proposal would go some of the way towards removing some of the current
excesses of executive policy, my effort at highlighting the role of adminis-
trative agencies and regulations suggests that the effectiveness of Acker-
man’s proposals would remain extremely limited. That is to say, only if we
presume that a bounded state of exception rather than a more dispersed
emergency regulation is currently being used would efforts to bind it further
be effective. But proposals such as the supermajoritarian escalator would
do very little to change the “spitting on the sidewalk” strategy endorsed by
Ashcroft or the use of petty visa violations to enable large-scale roundups
and prolonged detention—as I noted earlier, what enables the indefinite
detention of hundreds of people without charge is not the use of an excep-
tional measure but the multiple use of an everyday measure. Moreover, as
I earlier noted with reference to Nonet’s work, the internal structure of a
rule of law and its relation to administrative regimes, far from negating such
an outcome, actually facilitates it. The current emergency response whose
operations we witness daily emerges from a broader field of governmen-
tality, and until such a modular and legalistic character is addressed any
effort to design a more liberal emergency constitution will invariably miss
a great many of its intended targets.
There is, moreover, a sense in which Ackerman’s proposal is interesting
for symptomatic reasons. It is, I think, illustrative of the danger of invoking
the space of exception as a space of nonlaw, for once such an idea of a space
of nonlaw becomes commonplace the seemingly logical conclusion is to
advocate the insertion of law, of more rules, regulations, conventions, and

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752 Nasser Hussain / Guantánamo
court cases. But if Ackerman himself is skeptical of the ability of the courts
to effect anything—“if Hugo Black fell down on the job, will his successors
do any better?” (“A,” p. 1043)—it is far from clear why he thinks the leg-
islature would do any better. And indeed, as we have seen, it does not do
any better. That is because the logic of emergency with its tautologicalclaims
of necessity (it is necessary to grant expanded powers because it is necessary)
is a statist logic, and no state institution by itself, absent a more general
political will, can break this tautological loop. What is needed then, I believe,
is a broader political and ethical response. I must admit, however, that even
as I suggest this, I am skeptical of my own proffer. Invocations of the need
for politics can often be obscure demands in situations where the greatest
specificity and clarity is called for. I will therefore spend the brief remainder
of this essay trying to substantiate what such a demand could mean.
One way in which a robust sense of the political would be required here
is in developing a more comprehensive posture towards questions of rule
of law and state power. Traditional conceptions of rule of law can accom-
modate a range of repressive powers, and I have already indicated why I
think simply designating such powers as lawless is neither normatively nor
descriptively accurate. A more useful response would be to emphasize an-
other valence in the rule of law, of general rules against the proliferation of
ad hoc and administrative regulations. Indeed, while I may not share
Hayek’s faith in the laissez-faire state, his warning that the proliferation of
administrative agencies and special tribunals would alter the very meaning
of the rule of law has a renewed relevance. But a demand for the political
would go further than Hayek’s. It would equally require that one take a
political position on other legal developments such as the evisceration of
immigration appeals or of any substantial Eighth Amendment protections
of prison conditions in the United States, properly viewing such develop-
ments as enabling the so-called emergency response and not as somehow
part of the normal landscape—as opposed to the exceptional landscape of
Guantánamo or the post-9/11 regime in general. At the very least, this would
also mean recognizing the modular way in which a modern governmen-
tality operates. That is, instead of too readily accepting the notion of the
exception as a space of nonlaw, such a posture would turn to the multiple
coordinations at all levels of law that make up the norm. Indeed, given that
such a response is a response not to the legality of a particular institution
but to a modality of power, it is deeply political.
But another way in which I wish to invoke the political is not in debating
versions of a rule of law but in insisting on an awareness of the limits of law.
Popular pressure on rulers and demands for direct accountability may seem
an obvious answer, but in my years of examining over 250 years of emer-

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Critical Inquiry / Summer 2007 753
gency law and the efforts to check it, I have yet to find any real substitute
for it. As I noted earlier, emergency law is based on a claim of necessity that
is amorphous at best and secret at worst—a claim that is in the end a tau-
tology. A resonant observation at the end of E. P. Thompson’s great work
on repressive “emergency” legislation, Whigs and Hunters, resonates with
this problem. Thompson counsels historians not to be too quick in their
trust of the state’s claims, not to begin with an understanding thatessentially
says “since the Act was passed, it may be assumed that it was necessary to
pass it.”51 Still today the only way out of that trap is a populist, daily, and
exacting demand for what constitutes necessity. Ironically, such demands
are needed in times of great fear when they are least likely to be forthcoming.
Nevertheless an admission of the diminished possibility of democratic ac-
tion in no way reduces its necessity.
But one cannot in good faith end here either, in a blind invocation of
mass politics and its efficacy. For if my argument about the obsolescence
of the norm/exception distinction and the completion of a blurred zone of
governmentality is at all correct, then at least one implication is that the law
itself becomes impervious to popular political demands and pressures. In-
deed, in what is (at least for me) a frightening repetition, it was precisely
the recognition of such an imperviousness, of the law and state as a machine
that “runs by itself ” (PT, p. 48), that led Schmitt to call for the pure politics
of the decision on the exception, a decision that would break the “crust” of
legal life (PT, p. 15). Perhaps the best that can be said here is that the demand
for the political cannot guarantee or foreclose its own outcomes. Upon that
indeterminacy rests our fate and fatality as legal subjects.

51. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York, 1975), p. 23.

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