From the insular cases to camp x-ray: Agamben's state of exception and United States territorial law

• Date: 26 September 2006
• Pages: 15-55
• Published date: 26 September 2006
• DOI: https://doi.org/10.1016/S1059-4337(06)39002-3
• Author: Charles R. Venator Santiago

FROM THE INSULAR CASES TO

CAMP X-RAY: AGAMBEN’S STATE

OF EXCEPTION AND UNITED

STATES TERRITORIAL LAW

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Charles R. Venator Santiago

ABSTRACT

Giorgio Agamben has used the notion of the state of exception to describe

the United States’ detention camps in Cuba. Agamben argues that the use

of the state of exception in the U.S. can be traced back to President

Lincoln’s suspension of the right of habeas corpus during the Civil War.

This paper suggests that this argument obscures more relevant legal and

political precedents that can be found in U.S. territorial legal history.

Moreover, while Agamben’s argument obscures conceptual distinctions

between a state of emergency and a state of exception, his argument also

provides resources that can expose the limits of liberal interpretations of

the relationship between the State, the citizen, and the law.

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This paper was originally prepared for the conference on ‘‘Sovereignty Matters: An Inter-

disciplinary Conference on Sovereignty in Native American, Pacific Islander, and Puerto Rican

Communities,’’ April 15–16, 2005, Columbia University, New York. This is part of a larger

ongoing project on the relationship between United States territorial jurisprudence, nation-

building, and race.

Studies in Law, Politics, and Society, Volume 39, 15–55

Copyright r2006 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(06)39002-3

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1. INTRODUCTION

In the brief defending the legal and political status of United States (U.S.)

detention Camps in the Guantanamo Bay Naval Base, Cuba, the Solicitor

General Theodore B. Olson contended that U.S. Courts lacked jurisdiction to

consider challenges to the detention of enemy combatants.

1

Likewise, inter-

national Courts, Olson argued, also lacked jurisdiction because the ‘‘Pres-

ident has determined that neither al Qaeda nor Taliban detainees are entitled

to prisoner-of-war status under the Geneva Convention Relative to the

Treatment of Prisoners of War of August12, 1949.’’

2

One of the key premises

informing these policy positions rested on a sort of tautological logic used to

describe the legal and political status of the detention camps. Olson argued

that U.S. Courts lacked jurisdiction over the U.S. camps because the enemy

combatants were ‘‘being held by the U.S. military outside the sovereign ter-

ritory of the United States.’’

3

Moreover, because the detention camps are

outside the sovereign territory of the U.S., international law is inapplicable to

the detainees.

4

Stated differently, according to the Bush Administration, de-

tention centers such as Camp X-ray are outside the purview of law because

they are places that are foreign in a domestic sense. The so-called enemy

combatants, according to this logic should be subject to the executive orders

of the President and the military guards interrogating them in these camps.

Partially drawing on the work of Carl Schmitt, Giorgio Agamben has

been adapting the notion of the state of exception to the present (Agamben,

1998, 2000) and has argued that the political and juridical status of the U.S.

post-September 11, 2001 detention camps are an expression of this notion

(Agamben, 2004, 2005, pp. 3–4). Agamben contends that the Bush Admin-

istration has used the ‘‘War on Terrorism’’ to justify the acquisition of

sovereign emergency powers that enable it to create a ‘‘juridical void’’ where

the U.S. Constitution/law is suspended and the detainees are left at the

mercy of their guards, in a condition resembling bare or naked life.

5

Places

like Camp-X-ray (Cole, 2003) become ‘‘zones of indistinction’’ where the

law is suspended and the political and juridical distinctions between inside

and outside are blurred or erased (Agamben, 2005, p. 23). Agamben’s lan-

guage is clear; detention facilities like Camp X-ray are representative of ‘‘the

topological structure of the state of exception,’’ these are spaces that are

‘‘neither outside nor inside,’’ or rather spaces that are ‘‘being-outside, and

yet belonging’’ (Agamben, 2005, p. 35).

Agamben also suggests that ‘‘the essence of the camp consists in the

materialization of the state of exception and in the subsequent creation of a

space in which bare life and the juridical rule enter into a threshold of

CHARLES R. VENATOR SANTIAGO16

indistinction, then we must admit that we find ourselves virtually in the

presence of a camp every time such a structure is created, independent of the

kinds of crime that are committed there and wherever its denomination and

specific topography’’ (Agamben, 1998, p. 174). Stated differently the sov-

ereign or in this case the Federal government, creates a juridico-political

state of exception, which enables the subsequent creation of a distinct ju-

ridico-political space where the law is suspended and where the inhabitants

of that space are subject to the violence of the guardians of that space. For

Agamben, the Nazi camp becomes the paradigm or rather the most extreme

expression of this state of exception. It follows, that the Bush Administra-

tion’s efforts to create a juridico-political state of exception in places like

Guantanamo Bay, Cuba (GTMO) could lead to the creation of a juridico-

political space where the law is suspended (e.g. Camp X-ray), and where

various forms of violence can become the rule. The detainees held in these

spaces could potentially be stripped of all legal and political protections and

in turn would be subject to the raw force and violence of their guardians.

Of course, part of the problem with Agamben’s arguments is that they

often remain somewhat ambiguous and to some degree conceptually mis-

leading. For example, while Agamben contends that the Nazi Camp pro-

vides the paradigm for the state of exception, he has also used this argument

to suggest that places like the ‘‘Hotel Arcade near the Paris Airport,’’ ‘‘even

certain outskirts of the great postindustrial cities as well as the gated com-

munities of the United States are beginning today to look like camps, in

which naked life and political life, at least in determinate moments, enter a

zone of absolute indeterminacy’’ (Agamben, 2000, p. 42). Surely, anyone

familiar with the atrocities committed in places like Auschwitz and Krakow

can readily dismiss Agamben’s exaggerations, as yet another example of his

failure to distinguish between the effects of the attitudes of SS Guards (Levi,

1993) and some private rent-a-cops working for a private security firm. To

be sure, having a confrontation with a rent-a-cop in a U.S. gated community

and/or a French concierge at the Hotel Arcade is not necessarily going to

result in the systematic extermination of the subject, guest, or detainee. Even

in more extreme cases such as those of the U.S. military detention camps in

Guantanamo Bay, Cuba, some detainees have been able to leave while oth-

ers facing judicial proceedings have been granted some procedural rights.

6

Moreover it is not readily evident that attorneys were traveling to places like

Auschwitz to represent Jewish and other detainees (Lewis, 2005).

Stated differently, the Camp paradigm is premised on a totalitarian

legal and political conception of the state of exception, while the more

contemporary examples often rely on juridical-political degrees of exception.

From the Insular Cases to Camp X-Ray 17