Deactivating the state of exception: imagining a popular trial for Khalid Sheikh Mohammed.

• Author: Johnson, Paul Elliott
• Position: Essay

Introduction

When Eric Holder announced in November 2009 that Khalid Sheikh Mohammed and his co-conspirators in the attacks of September 11 would face criminal prosecution in a courtroom in lower Manhattan, it caused an immense political firestorm. In proposing to remove Mohammed from the military jurisdiction of the prison camp at Guantanamo Bay, Cuba (Gitmo), the administration was not only tacitly admitting that the system of military commissions had limited prosecutorial potential but also was attempting to bring the war on terror in alignment with the rule of law. Mohammed, who at the time of his apprehension in March 2003 was hailed by CNN as the "single most important" capture in the global war on terror, was especially prominent not only because of his role in the attacks of September 11 but also for his repeated waterboarding at the hands of the United States (para. 2). By early spring of 2011, political opposition--both national and local--forced the administration of President Barack Obama to announce Mohammed would instead be tried by military commission at Gitmo.

At first blush, this appears to be one in a series of early policy reforms from the Obama administration that only cosmetically altered and, in some cases, intensified many of the George W. Bush-era tactics for pursuing the war on terror. Read retrospectively, it is tempting to side with legal analyst Christopher Weaver (2009) who regards these policies as part of a project "to justify detentions that extend, without judicial review, until after fighting ends" (para. 5). Continuing detention policies and the ongoing escalation of drone strikes, captured paradigmatically in the assassination of cleric Anwar al-Awlaki, might indicate no end in sight for the current conflict, one whose character Italian philosopher Giorgio Agamben (2003) labels the "state of exception," a political reality in which the "law encompasses living beings by means of its own suspension" to preserve and insulate the state's monopoly on legitimate violence from criticism and regulation (3). By defining Mohammed and al-Awlaki as uncivilized forms of life, the sovereign could violate their bodies with little consequential public outcry. For example, Gellman and Becker (2007) reported in The Washington Post that despite a widespread understanding that the Central Intelligence Agency repeatedly tortured detainees, such accusations produced little accountability (para. 3-5). The savage nature of these men coded their violation by the state as an effect of their lack of political capacity, offering up torture as the natural treatment for the uncivilized body, and drone strikes as a kind of soft, electronic euthanasia, delivered from afar with the press of a button. Both tactics deliver--and confirm--verdicts on the barbarous nature of their targets.

That Mohammed today remains in Gitmo appears to add another depressing chapter in the story of the war on terror. Media commentary like that of Cohen (2011) tends to describe the result as a defeat for the Obama administration, speaking in terms of political wins and losses and noting that the "reversal of plans, if not of policy" is "likely to be considered one of Holder's most disappointing legacies at the Justice Department" (para. 2). Such commentary, typical of the aftermath of the administration's decision, reduced the significance of the controversy to a simple question of whether or not the trial could happen, focusing on the institutional resolution of the dispute. Such a media frame not only rendered the state of exception a fait accompli by placing strict limitations on the ability to imagine a politics beyond state sovereignty but also mirrored the tendency in argumentation studies to assume that public policy failures are the result of insufficient argumentative packaging rather than conditions circumscribing the condition of possibility of deliberation itself.

G. Thomas Goodnight (1999) and Chaim Perelman (1979) are representative of this view insofar as they suggest the public plays a vital role in checking "technical sphere" domination in which highly idiosyncratic and specialized argumentative patterns predominate. In Goodnight's view, technical spheres may lose control over issues if "one side or the other is dissatisfied with the verdict" provided by internal deliberation then chooses to "appeal to a more general public." (255). In this way, "public interest may ... circumscribe the practice of technical agents" (257). Perelman points to a similar dialectic: the "rational and the reasonable." The rational is "divine reason," a non-dialectical, mathematical mode of thought that authorizes the law on the basis of objectivity. The "reasonable" is the public common sense, "the fact that it is acceptable or not by public opinion," which functions to humanize the law and prevent its termination into pure violence (217). Both Goodnight and Perelman suggest public argument as a corrective for technical spheres that are hopelessly divided or dangerously consensus-ridden. The state of exception presents a different type of problem wherein the state co-opts deliberation by using sham venues like military tribunals to maintain a deliberative veneer beyond the reach of the public. Because public argument requires an appropriate moment for public commentary where citizens can judge a set of actions, spatially annexing matters like detention policy walls them off from the American public who have no presence at CIA "dark sites" or Gitmo. Moreover, the complex of government officials, reporters, and media commentators that together constitute the apparatus of sovereignty produce the state of exception in a manner that--seemingly--provides no moment for public entry into deliberation. From where, then, will meaningful deliberation emerge?

Somewhat counterintuitively, in this essay, I argue the controversy of where to hold--whether to hold--the trial for Mohammed suggests how critics of argument and political advocates might think and act in ways that interrupt the state of exception to constitute and identify entry points into controversy for a public typically held at arm's length. Using the work of Robert Hariman (1990) and others on the concept of the popular trial, I examine the political firestorm over the trial as a kind of momentary hiccup that evidenced a deficit in the capacity of the sovereign to make good on its promise that Mohammed was an ontologically different kind of being than those who inhabit the West. In doing so, I suggest a modest corrective to critics of the popular trial who imagine its potential as heavily circumscribed. In fact, the mediated, reductionist, and adversarial nature of the popular trial makes it well suited to provide clarifying and dramatic moments within wartime conditions that are otherwise qualitatively hostile to any deliberation over what are presupposed to be natural--not political--"facts" warranting the suspension of the rule of the law. The popular trial joins these genre-specific demands to the "constituent power" of a citizen jury, giving the trial added significance, restoring deliberation albeit in a somewhat messy, less institutional manner. Even though Mohammed never faced a civilian jury, I argue the debate over his proposed trial still meets the qualifications for constituting a popular trial. Precisely because the controversy constitutes public space over and against the reality iterated by sovereign power, this genre holds potential as a kind of argumentative lever, one that jams a crowbar into the state of exception's "killing machine," suggesting its fragility rather than sinister permanence, underscoring the important role of rhetoric in constituting the state of exception while rebutting concerns of critics who regard Agamben as highly pessimistic (Agamben 2003, 86).

I proceed by first looking at the breaking news of the trial, emphasizing the dramatic prose in papers of the day. I then briefly rehearse Agamben's account of biopolitics, paying specific attention to the public figuration of Khalid Sheikh Mohammed in this regard. I then examine the first, most robustly deliberative phase of the controversy of the trial, layering in observations about the moment as characterized by the presence of what political theorists call the "constituent power" followed by an engagement with the existing literature on the popular trial genre. I then examine the dying embers of the proposed trial and the ultimate decision to try Mohammed before a military commission.

The trial of the century

Coverage of the trial proceeded in three definable stages. The initial phase of coverage bears the marks of a public transcript in line with what Robert Hariman (1990) calls the "popular trial," a literary genre of public life in which media accounts of a trial stage difficult to represent socio-political dilemmas. The narrative components of trial proceedings--the personification of causes, adversarialism, the "thoroughly rhetorical" expectation that arguments may be made and must be considered, and the drama of a final decision--enable deliberation (4). Crucially, Cuklanz (1995) notes, these trials provide "the specific ground on which generalizable controversial issues can be debated" (45). In the context of the war on terror, where citizens are alternately taught to engage in commerce rather than deliberate (Pellegrini 2001), that paying lip service to democracy is real dialogue (Mitchell 2010), and that conducting warfare is a sacred civilizational duty rather than a choice (Ivie 2005a), a trial offers a messy, indeterminate point of democratic entry for the nation's populace. With a legal trail that runs thick with jargon stretching from John Yoo's memos to all the way to Gitmo, the trial produces a threshold for public entry into deliberation within a previously separate technical sphere monopolized by legal experts and the sovereign.

Initial reports on the trial...