Chapter 11 of Derek Gregory and Allan Pred (eds), Violent Geographies: fear, terror
and political violence (New York: Routledge, in press)
Vanishing points: Law, violence and
†exception in the global war prison
„When one hears about another person‟s physical pain, the events
happening within the interior of that person‟s body may seem to have the
remote character of some deep subterranean fact, belonging to an invisible
geography that, however portentous, has no reality because it has not yet
manifested itself on the visible surface of the earth‟
Elaine Scarry, The body in pain: the making and unmaking of the world
Power, space and visibility
The „vanishing points‟ that I seek to identify in this essay can be brought into preliminary view through three figures and two sites. The three figures are a hooded man, a masked philosopher and an outlaw president, none of whom is quite what he seems. The two sites are the US Naval Station at Guantánamo Bay and Abu Ghraib prison in Iraq: and neither of these is quite what it seems either.
A hooded man, a masked philosopher and an outlaw president
In the middle of October 2003 Haj Ali al-Qaisi, the former Mukhtar – community
leader – of al Madifai, a district west of Baghdad, was arrested by US troops on his way to work. He was hooded, handcuffed, and taken to Abu Ghraib prison, where he was asked about Saddam Hussein, Osama bin Laden and the insurgency. „They wanted me to become their eyes in the region,‟ he said. But he protested that he knew nothing, and he
† I am grateful to Matthew Farish, David Nally and Matthew Sparke for helpful comments,
was left to kick his heels in a large tent compound. Ten days later he was taken to Cage 49 in Cellblock 1. There he was interrogated daily, and frequently made to spend the night hanging by his handcuffs from the crossspiece of the bars in his cage. Finally, he was told that he had exhausted the patience of his captors. Forced up on a box, electrodes were attached to his fingers. Again he was asked for names of insurgents, and again he protested that he did not know any. Silence. He could see the flashes of cameras through the rough hood. Then he felt the first electrical shocks: „My eyes felt like fire, my whole body shook; I lost feeling in my tongue and bit it. I fell down; my tongue was bleeding. They took the hood from my face and a doctor came to me. He opened my mouth with his foot and put some water in my mouth and said, “He is OK. Shock him some more.”‟ He endured two more sessions before being returned to the tent compound. He says he vomited when he saw the sun. He was released in January 2004 and told that it had all been „a mistake‟. For some considerable time Al Qaisi was believed to be the hooded man in the iconic photograph from Abu Ghraib, but it now seems that this was another prisoner who was subjected to similar treatment. According to a terse deposition from Abdou Hussain Saad Faleh, he was forced to stand on a box „with no clothing, except a blanket. Then a tall soldier came and put electrical wires on my fingers and toes and on my penis, and I had a bag over my head. Then he was saying, “Which switch is for
Some commentators have exploited the uncertain identification of „the hooded man‟ to discredit Al Qaisi‟s testimony and his work for the Association of the Victims of American Occupation Prisoners, while Faleh‟s testimony – like that of other victims – is
shuffled off into an appendix to one of the official investigations. But their voices need to be heard, for the fact remains that the war prison described by victims like these is a far cry from the modern carceral regime described by „the masked philosopher‟, Michel
1 Paola Coppola, „The man beneath the hood speaks out‟, Guardian 21 September 2005;
Donovan Webster, „The man in the hood‟, Vanity Fair February 2005; Kate Zernike,
„Cited as symbol of Abu Ghraib, man admits he is not in photo‟, New York Times 18
March 2006; „Translation of statement provides by Detainee 18470‟, Karen J. Greenberg and Joshua L. Dratel (eds), The Torture Papers: the road to Abu Ghraib (Cambridge:
Cambridge University Press, 2005) p. 526.
Foucault. It is a strange hybrid. It is not a prisoner of war camp, since its central operation is the continued interrogation of prisoners taken during the „war on terror‟, most of whom are denied the status of prisoners of war; yet many of its sites are inspected by the International Committee of the Red Cross which is required to visit all prisoners held as a result of armed conflict or military violence. Neither is it an ordinary prison, since its inmates have been captured by security forces and placed outside the normal legal process, and the regime to which they are subjected is not an intrinsically correctional one; yet they are subject to stringent surveillance and moved through a hierarchy of spaces depending on their co-operation with their captors. In what follows I suggest that the war prison (like the „war on terror‟ more generally) can be understood as
2a dispersed series of sites where sovereign power and bio-power coincide.
It was Foucault who distinguished these two modalities of power, but Italian philosopher Giorgio Agamben claims that Foucault failed to locate the „vanishing point‟ to which these „perspectival lines‟ converged, „a hidden point of intersection between the
juridical-institutional and the bio-political models of power.‟ In fact, however, Foucault
was acutely aware of their contradictory combination, and argued that they coincided within the paroxysmal space of the Third Reich. This is the same constellation identified by Agamben, who describes the point of intersection between the two as the production of bare life – „life exposed to death‟ – and treats the concentration camp in general and
3Auschwitz in particular as the paradigmatic space of political modernity. Here I treat the
global war prison as neither a paroxysmal nor a paradigmatic but a potential space of political modernity, which is given form and force through a profoundly colonial
2 Cf. Julian Reid, „The biopolitics of the War on Terror‟, Third World Quarterly 26 (2005)
pp. 237-52: 241. 3 The central texts are Michel Foucault, Discipline and punish: the birth of the prison
(London: Penguin, 1977); idem, The history of sexuality: an introduction (London:
Penguin, 1978); idem, “Society must be defended”: Lectures at the Collège de France
1975-1976 (New York: Picador, 2003) p. 260; Giorgio Agamben, Homo sacer: sovereign
power and bare life (Stanford: Stanford University Press, 1998) p.6; idem, Remnants of
Auschwitz: the witness and the archive (New York: Zone Books, 1999); State of
exception (Chicago: University of Chicago Press, 2005).
apparatus of power that the metropolitan preoccupations of Foucault and Agamben more or less erase.
One of the crucial differences between these philosophical projects is that Foucault focused on strategies through which the normal order contains and confines „the outside‟ (the sick, the mad, the criminal) whereas Agamben focuses on strategies through which „the outside‟ is included „by the suspension of the juridical order‟s validity – by
letting the juridical order withdraw from the exception and abandon it.‟ This „space of the exception‟, Agamben argues, is produced through martial law and a state of emergency, which then become the ground through which sovereign power constitutes and extends itself. It is here that we encounter „the outlaw president‟. Three days after
the terrorist attacks on the Pentagon and the World Trade Center on 11 September 2001 President George W. Bush declared a National Emergency „by reason of [those] attacks and the continuing and immediate threat of further attacks on the United States.‟ This was followed by a further declaration on 23 September 2001 to deal with „the unusual and extraordinary threat to the national security, foreign policy and economy of the United States‟ by „grave acts of terrorism and threats of terrorism committed by foreign terrorists.‟ The emergency has been renewed in each subsequent year, and Agamben suggests that Bush „is attempting to produce a situation in which the emergency becomes the rule‟: in which „provisional and exceptional measures‟ are transformed into „a technique of government‟. The cascade of national emergencies did not begin with Bush;
4 But he has continued seven previous National Emergencies and declared eight others. what attracts Agamben‟s attention, and what distinguishes the double emergencies declared in September 2001, is their proximity to a supposedly new kind of war (the „war
5on terror‟) and the legal formularies that have been mobilized around it. Although it has
become a commonplace to describe this as a „war on law‟, however, I seek to show that it
is also a war fought through the law („law as tactic‟, as Foucault might say). While the Bush administration shows manifest disdain for domestic and international laws, it
4 Harold Relyea, „National Emergency Powers‟, Congressional Research Service, The Library of Congress, Washington DC, 15 September 2005. 5 Agamben, Homo sacer; State of exception, pp. 2, 22.
6 This matters because it means that law is a site neither dismisses nor disregards them.
of political struggle not only in its suspension but also in its formulation, interpretation
Guantánamo and Abu Ghraib
The Bush administration produced two different „exceptional‟ geographies to account for – and prise apart – its operations at Guantánamo Bay and Abu Ghraib. In the
first case, Guantánamo was construed as a legally constituted space of the exception. It was selected because the Department of Justice believed that the location of the Naval Station – as „foreign territory, not subject to US sovereignty‟ – would militate against any
attempt to use federal courts to obtain a write of habeas corpus on behalf of enemy aliens
held prisoner there. Other legal protections were withdrawn when the President determined that neither al-Qaeda nor Taliban prisoners qualified as prisoners of war under the Geneva Conventions. In the second case, in contrast, Abu Ghraib was declared a crime scene, the incidents there held to be offences against both US military and international law, and official inquiries were conducted that issued in reprimands, disciplinary actions and (in the case of enlisted soldiers) courts-martial. What happened at Abu Ghraib was glossed as unacceptable but un-American, appalling but an aberration, inexcusable but an exception.
The different meanings of exception that were invoked depend on the articulation of two different space-times. „Guantanámo‟ signifies not only an ambiguous space – a
grey zone over which the United States claims jurisdiction but not sovereignty – but also
a place of indeterminate time: „As a territory held by the United States in perpetuity over which sovereignty is indefinitely deferred, the temporal dimensions of Guantánamo‟s
6 Indeed, both neo-liberalism and neo-conservatism work to disparage existing laws and juridical practices (the insistence on the supreme power of the 'unitary executive', the assault on 'activist judges', the drive to 'de-regulation') and also to introduce new ones that restrict democratic politics, roll back human rights and reify the market.
location make it a chillingly appropriate place for the indefinite detention of unnamed
7 Conversely, enemies in what the administration calls a perpetual war against terror.‟ „Abu Ghraib‟ is made to appear as a precise punctuation in time and space: the abuse of prisoners was supposedly confined to Tier 1A of the so-called „Hard Site‟ of the Baghdad
Central Correctional Facility, and it occurred in a number of isolated incidents during the night shift from October through December 2003. One is produced as an exception by being located beyond the law; the other is produced as an exception by being localised within the law.
I want to contest all these partitions by showing that „Guantánamo‟ and „Abu Ghraib‟ are connected by the intersections of sovereign power and bio-power that are
realized through a series of spaces that fold in and out of them.
Agamben and Auschwitz
In describing these connections as „foldings‟ I am using Agamben‟s topological vocabulary, but my mapping is guided by two critical considerations. One concerns the state of exception and extra-territorialization – the volatile geographies produced through
geopolitics and international law – and the other concerns witnessing and the apparatus of
violence. Both arise from Agamben‟s reflections on Auschwitz, and while I do not seek
to collapse „American Empire‟ into the Third Reich I do want to urge recognition of its proto-fascist potentialities.
Exception and extra-territorialization
Agamben‟s description of sovereign power and the state of exception is almost always framed by a single state. His brief history of the state of exception in Europe and the United States is shaped by the exigencies of war, but the emphasis is on suspensions of national law during states of emergency declared by France, Germany, Italy, Britain
7 Amy Kaplan, „Where is Guantánamo?‟ American Quarterly 57 (2005) 831-858: 837.
8 In treating the camp as the exemplary locus of the modern space and the United States.
of exception, Agamben notes that concentration camps first emerged in colonial spaces of exception in Cuba and South Africa, but he passes over these to focus on Nazi concentration camps and, in particular, Auschwitz. Yet Auschwitz, like the other five extermination camps that were dedicated to the horrifying production of what Agamben calls the „German biopolitical body‟, was within Nazi-occupied Poland. Agamben has
drawn parallels between the legal status of prisoners in these camps and prisoners in Guantánamo: their situations, so he says, are formally – „paradigmatically‟ – equivalent.
To adjudicate such a claim, however, and to connect the metaphysics of power to its material inscriptions, it is necessary to ask how the state of exception is mediated by the connections between war, military occupation and international law.
Agamben is silent on this question, whereas one of his principal provocations, the German jurist Carl Schmitt, wrote passionately about war, military occupation and international law. He saw an intimate connection between the state of exception within a state‟s territory and belligerent occupation where, in practice, „the occupied population is
subject to the holder of undifferentiated power without even the protection afforded to it
9indirectly by pure international law, for it is not a legal subject.‟ He knew what he was
talking about, given his own complicity with the Nazi regime, but his argument raises a question that is central to any critical analysis of the „war on terror‟. If the state of
exception is also a space of exception, as Agamben insists, then in these situations surely the exception depends on the articulation of multiple spaces of political-juridical violence
and an ex-ception, a „taking outside‟, through the extra-territorial inscriptions of
International law is no stranger to the inflections of colonialism and imperialism, and it is scarcely surprising that the perverse and paradoxical spatiality that Agamben attributes to the exception should be compounded by the spatialities of international law. International law is decentred, without a unitary sovereign to ground or guarantee its
8 Agamben, State of exception, pp. 11-22. 9 Peter Stirk, „Carl Schmitt, the law of occupation and the Iraq war‟, Constellations 11 (4)
(2004) 527-36: 530.
powers; its provisions are distributed through a congeries of conventions, treaties, and organizations. For this reason, nineteenth-century legal philosopher John Austin famously declared that international law is not really law at all: laws could only be „properly so called‟ if they were „commands of a sovereign‟, which made international
10 After the Second World War one of Schmitt‟s law merely „law by close analogy‟.
sharpest interlocutors extended this view (though to different ends) to suggest that „if international law is at the vanishing point of law, the law of war is perhaps even more
conspicuously at the vanishing point of international law‟. And more recently,
Lieutenant-Colonel William Lietzau, Special Adviser to the General Counsel of the US Department of Defense, extended even that view to propose that „the global war on
11terror‟ is at „the vanishing point of the law of war.‟ Taken in sequence, these three
telescoping perspectives direct the politico-legal gaze through an extended series of vanishing points towards „non-places‟ for „non-people‟: sites like Guantánamo and Abu
Witnessing and the apparatus of violence
Those visual metaphors raise a second set of questions: what happens when those sites become sights? The question is raised most powerfully by the images from Abu Ghraib, but despite the iconic status of both Guantánamo and Abu Ghraib – or, rather,
because of it – we need to remember that these are spaces of both constructed and constricted visibility and that most of what happens there continues to be shielded from the public gaze. The images that entered public cultures around the world multiplied with extraordinary speed. They attracted the attention of cartoonists, graphic designers, sculptors and artists, and in the fall and winter of 2004 many of the photographs from
10 John Austin, The province of jurisprudence determined (edited by Wilfred E. Rumble)
(Cambridge: Cambridge University Press, 1995; first published in 1832) p. 254. It would not be difficult to argue that the United States now seeks to arrogate to itself precisely that sovereign role. 11 Hersch Lauterpacht, “The Problem of the Revision of the Law of War”, British
Yearbook of International Law 29 (1952) pp. 360-82: 382; William K. Lietzau,
„Combating terrorism: law enforcement or war?‟ in Terrorism and International Law:
challenges and responses, International Institute of Humanitarian Law (2002) 75-84: 79.
Abu Ghraib were displayed at the International Center of Photography in New York and the Andy Warhol Museum in Pittsburgh.
What are we to make of this image-frenzy? Cultural critics have raised myriad questions about the connections between the images and other photographic regimes in the United States but the most urgent centred on the complex affiliations between
12 In this case these are complicated by the fact that both sides in aesthetics and politics.
the „war on terror‟ deploy images as strategic devices, and by the strong supposition that, had it not been for the minimalist release of the Abu Ghraib images, neither the Pentagon nor the White House would have taken much notice of reports of prisoner abuse and torture. That the images have been aestheticized seems beyond doubt, then, but in many cases and contexts it seems no less clear that they also carry a political charge. And yet: I have come to agree with Mark Danner when he suggests that the photographs eventually came to stand in the way of an adequate understanding of what happened. The public gaze was directed towards the images not the process and policy behind them. Critical attention was focused on acts isolated as a series of stills and frames rather than on the
13apparatus that produced them.
These concerns intersect with Agamben‟s reflections on Auschwitz and the ethics of bearing witness. He distinguishes two senses of „witness‟: one is juridical, and concerns third-party testimony to establish the facts of the matter in a trial, whereas the other derives from first-hand experience that radically estranges its testimony from law that „is solely directed toward judgement, independent of truth and justice.‟ This distinction opens into a lacuna, because those who survived Auschwitz are witnesses in neither sense. They were scarcely third-party observers, but neither can they substitute for the first-hand testimony of those millions who died in the camps. Agamben confronts the absence – „the untestifiable, that to which no one has borne witness‟ – through the
12 Susan Sontag, „Regarding the torture of others‟, New York Times Magazine, 23 May
2004; W.J.T. Mitchell, „The unspeakable and the unimaginable: word and image in a time of terror‟, English literary history 72 (2005) pp. 291-308. 13 Mark Danner, Torture and truth: America, Abu Ghraib and the war on terror (New
York: New York Review of Books, 2004) pp. xiii, 9, 40, 47.
figure of the Muselmann („the Muslim‟), the abject prisoner who moved in the
indeterminate shadows of life and death, in a space where „humanity and non-humanity‟
constantly passed through each other. He thus reads the Muselmann as a „perfect cipher‟
14 for the camp itself, the bearer of its secret performative geography.
In a passionate commentary, however, Jay Bernstein suggests that what is lost from view, as a constitutive moment in Agamben‟s itinerary of reductions to bare life, is the complex of institutions, practices and people through which human beings were transformed into Muselmänner: the gas-chambers, the guards, the huts, the watchtowers, the railways, the police, the roundups, in short the whole apparatus of violence of the Reich itself.
„At no point does [Agamben‟s] account veer off from the space of
impossible sight to the wider terrain: from the victim to the executioners,
to the nature of the camps, to the ethical dispositions of those set upon
reducing the human to the inhuman. Just the inhuman itself fills
Agamben‟s gaze, and hence ours; such is the pure desire to bear witness.‟
Bernstein‟s concern is that Agamben transforms the act of witnessing into an aesthetic act
that re-stages what he calls „the pornography of horror‟ through its abstraction. For Bernstein, this aestheticization betrays „one of the deepest strains in Agamben‟s thought‟ by „suppressing the very ethical space it means to elaborate.‟ If this is so, then what are
we left with? What remains? Bernstein‟s answer:
„Not the chambers or Auschwitz, not a place or set of practices, not the
apotheosis of a complex historical trajectory, just the result of it all. With
this we can hear the shutter of Agamben‟s philosophic camera snap open
15and closed. Click!‟
14 Agamben, Remnants, pp. 17-18, 41, 47. 15 J.M. Bernstein, „Bare life, bearing witness: Auschwitz and the pornography of horror‟, parallax 10 (1) (2004) pp. 2-16: 3, 7, 14. See also Catherine Mills, „Linguistic survival