State of Exception

First, a little historical background. Recall the context of this passage from a July 4, 2004 Washington Post story:

An August 2002 memo, provoked by a CIA request for interrogation guidance, suggested that the president's commander-in-chief authorities meant that those acting at his direction would be immune from prosecution for torture. That memo drew on a January 2002 memo that suggested, over the opposition of the State Department's legal adviser, that the president could suspend the application of international protections for detainees.

Taken together, the memos presented a legal groundwork for aggressive questioning of foreign detainees.

"Aggressive questioning" is, of course, an understatement. See Discourse.net for a refresher on this issue of the August memo from the Justice Department’s Office of Legal Counsel which interprets the authority of the executive branch to include "extraordinary powers" to determine (without consultation with Congress) the nature of the treaties the U.S. has entered into and to read those treaties in such a light as to restrict only such "cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” This leaves quite a bit of leeway, as we now know from the Red Cross reports of hiding prisoners and the Army investigation of Abu Ghraib.

Let me shift the discussion to Giorgio Agamben for a moment. Agamben has written extensively on the issue of biopolitics, i.e., the relation of biological life and political power. In Agamben's terms (drawn from his reading of Aristotle's De Anima), this is the distinction between the instinctual animal life of zoē and the politically engaged life of bios. Reading Aristotle against the grain, Agamben recognizes the dependence of bios on zoē not only as its logical precondition but as a necessary exclusion. Political life is constituted and sustained by its exclusion of animal life from the political domain. Agamben prefers the term "bare life" for this excluded originary ground of political power because it is through this word "bare" that he connects this political-ethical category to the ontological category of pure Being. The term for "pure" or "bare" in Greek is haplōs, which indicates the indeterminate and impenetrable nature of that which it describes. Thus, reason cannot think bare life or pure Being, yet the problem for the political animal is to isolate the bare life as much as the problem for the thinking animal is to isolate pure Being. In other words, just as metaphysics has its constitutive limit concept in this notion of pure Being, so politics does in bare life.

To understand what this "exclusion" of bare life consists in, it will be necessary to see the true character of political power: the power of life and death. Although Agamben does not refer to it, Bill Holm's The Music of Failure contains a passage which seems to capture two key points that Agamben is making. (I found this passage quoted in Jeffrey Stout's Democracy & Tradition, a book that I would also like to comment on in a later post.) Holm writes:

Sacredness is unveiled through your own experience, and lives in you to the degree that you accept that experience as your teacher, mother, state, church, even, or perhaps particularly, if it comes into conflict with the abstract received wisdom that power always tries to convince you to live by. One of power's unconscious functions is to rob you of your own experience by saying: we know better, whatever you may have seen or heard, whatever cockeyed story you come up with; we are principle, and if experience contradicts us, why then you must be guilty of something. Power--whether church, school, state, or family--usually does this at first in a charming way while feeding you chocolate cake, bread and wine, advanced degrees, tax shelters, grant programs, and a strong national defense. Only when contradicted does it show its true face, and try to kill you.

Agamben would agree with two points here. First, there is something sacred which conditions all instances of sovereign power, though he would likely be suspicious of any description of it as the revelation of experience. This condition is exemplified by homo sacer ("sacred man")--a term borrowed from Foucault which Agamben expands to denote any figure, i.e., any body, who has been abandoned before the law. (I will explain this below. For the moment, it is worth noting that Agamben's sense of sacrality is a juridical category more so than a religious one.) Second, the logic of sovereign power depends on the power to put its subjects to death.

To put this discussion in another light, Agamben argues that modern political theories have omitted this ground of all state power. While political theory often posits a contractual origin of state power, Agamben claims that all sovereignty originates from the "ban" or "abandonment," by which he means the isolation and exclusion of bare life. In other words, politics is always from its origin biopolitics. Where there were rights (natural, human, logical) at the foundation of political liberty, there is, in Agamben's scheme, the arbitrary decision of sovereign power. This is the logic of sovereignty; its true face arises from and within the "state of exception," the hallmark of which is the power over life and death.

In the Roman Empire, homo sacer lived in this state of exception because such a "sacred man" had been convicted and sentenced as a criminal of a peculiar sort--one who had been deemed worthy of death but could not be executed by the state or religiously sacrificed. The ban on execution or sacrifice coupled with his worthiness of death meant that he had been abandoned before the law (both human and divine). Like Cain, his status was indeterminate; anyone could kill him with impunity. There is a paradox here: homo sacer was abandoned by the law, but only within the context of the law. Without the law, there could be no such ban or abandonment. By the power of the law, he was reduced to bare life, and the truth of the state's sovereignty was revealed in its power over this life. Only through the power of the law can homo sacer live within the state of exception to the law.

Agamben connects this figure of Roman history to the inmates of the death camps in Nazi Germany. For Agamben, the camp represents a "new juridico-political paradigm in which the norm becomes indistinguishable from the exception" (Homo Sacer, p. 170), and, to make a long story short, this paradigm is operative as the foundation of Western politics no matter how attached we may be to a rights-based story of our political origins.

Thus, Agamben seems to offer quite a grand récit for Western political history (I have obviously left out the texture and depth of his thick narrative). It is not my intention to evaluate it here so much as to note its relevance in relation to the story with which we began. When Agamben argues that "an absolute indistinction of fact and law" is an essential feature of the camp nomos which governs us now, the "torture" memos of the White House counsel seem to bear this out. The president's extraordinary powers, we are told, permit this indistinction and even require it. We are living in the state of exception, and it is becoming normal.

At some point, I would like to say more about this and Agamben's suggestion that the Muselmann (i.e., the "walking dead" in the death camps) represents the ideal type of resistance in this situation. I disagree, but I do admit that some sort of protest that does not recapitulate the logic of sovereignty must be found. I am just not convinced that this "silent form of resistance" is the way to go. I plan to write on Stout's book before long, and this issue will no doubt make its way into that discussion.