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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
Stable URL: http://www.jstor.org/stable/10.1086/521567 .
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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then so too is the sovereign power that governs it when law has withdrawn.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.
734
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.
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]).
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), www.yale.edu/lawweb/avalon/
diplomacy/cuba/cuba003.htm
13. Isthmian Canal Convention: Convention between the U.S. and Panama, (1903), www.
fordham.edu/halsall/mod/1903panama.html
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).
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,
see Mark Denbeaux et al., Report on Guantánamo Detainees: A Profile of 517 Detainees through
Analysis of Department of Defense Data (2006), law.shu.edu/news/guantanamo_report_final_
2_08_06.pdf
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),
www.globalsecurity.org/military/library/policy/dod
24. Agamben, State of Exception, p. 21; emphasis added.
25. Quoted in Gross, “Chaos and Rules,” p. 1032 n. 79.
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.
32. Joan Dayan, “Cruel and Unusual: The End of the Eighth Amendment,” Boston Review
(Oct.–Nov. 2005): 12, bostonreview.net/BR29.5/dayan.html
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.
35. Declaration of National Emergency by Reason of Certain Terrorist Attacks, 66 F. Reg. 48199
(2001).
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).
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.
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, www.usdoj.gov/oig/special/0306/full.pdf; 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).
51. E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York, 1975), p. 23.