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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx

Torture and the state of exception in the US « Previous | |Next »
January 27, 2005

First some scene setting.

This drawing by Jonathan Twingley in the New York Review of Books sets the scene. NYRBTwingley1.jpg

Then we have this recent post over at public opinion. It links to Andrew Sullivan's book review of two books on torture in the New York Times.

Then we have our knowledge that between 70 and 90 percent of the persons deprived of their liberty in Iraq had been arrested by mistake and that 85-90 percent of the detainees were of no intelligence value. And our knowledge know that torture is being routinely used after 9/11 by the Bush Administration.

How does this connect with the state of exception? That state is the exception to the normal.

There is an interesting paragraph in Sullivan's review that illustrates this. Sullivan says:

'But Bush clearly leaned toward toughness. Here's the precise formulation he used: "As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (My italics.)

Notice the qualifications. The president wants to stay not within the letter of the law, but within its broad principles, and in the last resort, ''military necessity'' can overrule all of it. According to his legal counsel at the time, Alberto R. Gonzales, the president's warmaking powers gave him ultimate constitutional authority to ignore any relevant laws in the conduct of the conflict. Sticking to the Geneva Convention was the exclusive prerogative of one man, George W. Bush; and he could, if he wished, make exceptions. As Assistant Attorney General Jay S. Bybee argues in another memo: "Any effort to apply Section 2340A in a manner that interferes with the president's direction of such core war matters as the detention and interrogation of enemy combatants thus would be unconstitutional." (Section 2340A refers to the United States law that incorporates the international Convention Against Torture)'


Is this not a very clear example of what Carl Schmitt and Giorgio Agamben meant by the state of exception? Bush can decide what constitutes an exception to the rule of law. The emergency becomes the rule.

Mark Danner, in an article entitled 'We Are All Torturers Now' confirms this position.He opens by characterising the normal as a "certain story line of scandal, in which revelation is followed by investigation, adjudication and expiation. Together, Congress and the courts investigate high-level wrongdoing and place it in a carefully constructed narrative, in which crimes are charted, malfeasance is explicated and punishment is apportioned as the final step in the journey back to order, justice and propriety."

Then Mark describes the exception:

When Alberto Gonzales takes his seat before the Senate Judiciary Committee today for hearings to confirm whether he will become attorney general of the United States, Americans will bid farewell to that comforting story line. The senators are likely to give full legitimacy to a path that the Bush administration set the country on more than three years ago, a path that has transformed the United States from a country that condemned torture and forbade its use to one that practices torture routinely. Through a process of redefinition largely overseen by Mr. Gonzales himself, a practice that was once a clear and abhorrent violation of the law has become in effect the law of the land.

The consequences for Australia is that Australian citizens are detained for years without being charged and they can be tortured whilst being detained.

A classic example is Mamdouh Habib, who has been held in detention Guantanamo Bay for more than three years without charge on suspicion of terrorism offences---he was accused of training with al-Qaeda. He claims to have been tortured and presumes that he has been subject to the techniques of "water-boarding," (in which a prisoner is stripped, shackled and submerged in water until he begins to lose consciousness) and other forms of near suffocation; sleep and sensory deprivation; heat and light and dietary manipulation; and "stress positions."

News reports say that Habib will be released in the next day or so. The Australian government is required to promise US officials that Mr Habib would not pose a continuing security threat to the US or its allies. The Howard Government has said that Habib will be under constant surveillance by ASIO, federal and NSW police once he arrives in Australia.

Yet Mick Keelty Australian Federal Police (AFP) Commissioner has said Mr Habib will not be charged when he lands in Australia, since is a free person and had committed no crimes under Australian law.

Presumably Habib is one of those detainees who were of no intelligence value to the US, and he had been arrrested by mistake. Yet the Australian government sees him as a combatant in a conflict with terrorists and so can be rightfully detained and held in detention until the end of the war of terror.

Mark Danner continues:

em>'The system of torture has, after all, survived its disclosure. We have entered a new era; the traditional story line in which scandal leads to investigation and investigation leads to punishment has been supplanted by something else. Wrongdoing is still exposed; we gaze at the photographs and read the documents, and then we listen to the president's spokesman "reiterate," as he did last week, "the president's determination that the United States never engage in torture." And there the story ends.'

Not quite. We need to add that the torture continues.The president denies it and middle America takes the president at his word.

The state of exception has become normal.

| Posted by Gary Sauer-Thompson at 11:59 PM | | Comments (1) | TrackBacks (1)
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Gary

A great summary of what has taken place in the public discourse about Abu Graib, and torture in general, inside the United States. Fear and the overriding obsession with safety has eliminated any concern for what is happening to thousands of innocent people at the hands of American torturors. As an American, I am disgusted. I really appreciate the fact that your blog is a space where open and free exchange of IDEAS can take place.