In April, days before the Abu Ghraib story broke, the Supreme Court was hearing Rasul v. Bush, the case of a British citizen captured in Afghanistan and held at the US naval base at Guantanamo Bay, without being charged and without access to legal counsel. There were, it turned out, intimate connections between the Abu Ghraib scandal and the Rasul case: Major General Geoffrey Miller, for example, the architect of Guantanamo, also helped to shape procedures at the various detention and interrogation facilities in Iraq. More generally, Abu Ghraib served as a window, one of the few we have had so far, into the secrets of Guantanamo Bay, a place where the aberrations of Abu Ghraib threaten to become the norm – where the exception, in other words, becomes the rule.

The concept of the state of exception (which is discussed more fully in Malcolm Bull’s review on page 3) was first put forward in the 1920s by the political and legal scholar Carl Schmitt. Having written on dictatorship, Thomas Hobbes, and political Romanticism, Schmitt turned his attention to the newly established liberal democracy of the Weimar Republic. He disliked the regime, and in particular he disliked the constitution, though he did not want to see it abandoned altogether. Instead, he focused on a provision that called for its suspension at moments of emergency – at times of war or national disaster. These emergency provisions, he suggested, should be exploited to create a permanent state of exception, in which the constitution would not be openly violated, but legally suspended.

Schmitt’s suggestion was taken up and a state of exception was declared in Germany with increasing frequency in the late 1920s and early 1930s before it was made permanent by Adolf Hitler. The use and abuse of the state of exception has been a temptation for many democracies in times of crisis: almost all constitutions, including the US constitution, contain emergency provisions such as the one picked out by Schmitt. Indeed, during the Supreme Court hearings of Rasul v. Bush, Theodore Olson, the then solicitor general, said of the ongoing hostilities in Afghanistan that they constituted the conditions for a state of emergency. US soldiers, he argued, were engaged in armed conflict with ‘an undisciplined, unprincipled and savage foe’. It wasn’t clear that such a foe had any rights, but if he did they should be ‘determined by the executive and the military, and not the courts’. In order to remove prisoners captured in the ‘war on terror’ from the reach of the courts, the administration created the new, ill-defined category of ‘enemy combatant’. This label sets detainees apart from the ‘prisoner’, let alone the ‘prisoner of war’, and thus denies them the rights such prisoners possess. ‘Enemy combatant’ inevitably brings to mind the ‘unlawful combatants’ specified by the Geneva Convention: non-uniformed combatants operating outside the context of the traditional battlefield. Seeking to sustain the resemblance, the US administration declared that it would treat these detainees ‘humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention of 1949’. The real point of the new coinage, however, is to create a plausible resemblance to the Geneva Convention and thus to make the right to humane treatment not inalienable, but subject to ‘military necessity’. In addition, Olson made it clear that the president alone can decide who is and is not such an ‘enemy combatant’. Schmitt, too, favoured rule by an ‘absolute sovereign’ (whom he got with a vengeance): an executive power unencumbered by other branches of government and human rights conventions, free to make emergency decisions.

One of the most striking aspects of the situation at Guantanamo Bay is the relation established there between law and territory. The administration has tried to make the naval base a territorially-defined state of exception, a zone in which neither Cuban nor American law applies. This has been made possible by an ambiguity in the lease of the naval base, which stipulates that the US has ‘complete jurisdiction and control’, while Cuba retains ‘ultimate sovereignty’. The invocation of ultimate Cuban sovereignty allowed Olson to argue that the protections furnished by the US constitution do not apply to Guantanamo Bay. Even John Gibbons, who argued the case on behalf of Rasul, had to admit that the legal status of Guantanamo is ‘unique’. While other naval bases have had to bring their legal position into line with the laws of the host nation, the US military has exclusive jurisdiction over Guantanamo Bay. Castro’s ‘ultimate sovereignty’, Gibbons argued, did not have any purchase and was therefore ‘metaphysical’: a formula later echoed by Justice Souter.

Holding onto the notion of an intangible Cuban sovereignty was handy for an administration interested not in metaphysical sovereignty but in actual control. The Guantanamo treaty with Cuba dates from the Spanish-American War, during which US marines occupied the bay; it was a secure harbour that could be used to supply ships with coal. Although the US victory meant that Cuba gained independence from Spain, it was also forced to accept the Platt Amendment, granting the US the right to intervene in Cuban affairs, as well as control over Guantanamo Bay, which was confirmed in a 1903 treaty. The Spanish-American War is generally seen as the starting-point of US imperialism, and from this perspective, Guantanamo Bay is the legacy of an earlier imperial era. Many amicus briefs in Rasul v. Bush cited British cases extending habeas corpus to British colonies and other conquered territories. In this sense the British Empire was the measure for the American one. At the same time, Guantanamo makes plain the differences between British and the new American imperialism, which seems to thrive on precisely the distinction between physical control and metaphysical sovereignty – as it has done in Iraq since the official handover of sovereignty. Indeed, it is in this difference that a space is opened for a state of exception to exist.

When, on 28 June this year, the Supreme Court finally handed down its decisions in the cases bearing on Guantanamo Bay, they were generally greeted with a sigh of relief. The majority opinion granted petitioners the right to file a writ of habeas corpus in a US court. Despite Cuba’s ‘ultimate sovereignty’, the opinion concluded that Guantanamo Bay fell under the ‘territorial jurisdiction’ of the federal courts. Unable or unwilling to make the case for many of the detentions, the administration has freed numerous detainees.

All this is good news, but many of the issues raised by the detention cases are far from resolved. For example, even though the court granted petitioners the right to file for habeas corpus, it denied them substantive rights, which means they can be tried by special military commissions rather than by regular judges and juries. The debate about these commissions is now in full swing, but it is already clear that several designated members are caught in egregious conflicts of interest. More disturbing still is that the Supreme Court left open the question as to whether there could, in principle, be other no-law zones in which the executive could hold detainees with impunity. In his dissenting opinion Justice Scalia seemed indignant that his colleagues had made the search for no-law zones more difficult: ‘Today, the court springs a trap on the executive, subjecting Guantanamo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction.’ Now that Guantanamo Bay is no longer outside the reach of the courts, the executive will have to find no-law zones that are more permanently removed from the reach of the federal courts. At the same time, the extension of federal law to Guantanamo brings with it its own problems. As Scalia pointed out, the majority had managed to ‘extend the scope of the habeas statute to the four corners of the earth’. By that logic, even parts of Afghanistan and Iraq would fall under the territorial jurisdiction of the US.

The court’s battle over Guantanamo speaks directly to the issue of American sovereignty abroad. It is misleading to think of the dissent simply as a legal version of Republican-style unilateral imperialism and the majority as a Democratic insistence on international treaties such as the Geneva Convention. The debate in the Supreme Court was not over whether the US should behave as an imperial power, but over the form its imperialism should take. While the dissent favoured the new executive-driven US imperialism, which would reserve the right to create no-law zones if need be (and there always is a need), the majority opinion embraced a legal imperialism that extends the reach of US courts to the ‘four corners of the earth’. Whether or not one sees this as a good thing (in the case of Guantanamo Bay it is certainly preferable to the alternative), it remains the case that it is an imperial gesture. The present Supreme Court is keenly intent on extending its own reach: an imperial court. To this end, the mostly Republican-appointed majority was willing to challenge even a Republican executive.

The battle between the Supreme Court and the administration over Guantanamo is one in which the law is trying to outmanoeuvre the executive by shutting down, however provisionally and half-heartedly, the state of exception. This echoes, but does not touch the heart of Schmitt’s thinking. Schmitt never set the executive in a simple opposition to the law; he wanted to derive the suspension of the constitution from the constitution itself. This way, the state of exception would preserve the constitution, even as it suspended it. Schmitt was not an enemy of the law. His purpose was to extend it to instances that were otherwise governed by chaotic emergency measures. Emergency measures thereby become part of the law, though in the paradoxical form of a law that stipulates the suspension of the law. In trying to control its own suspension, the law reaches beyond its own limits.

This last aspect of the state of exception has gained currency in US legal circles, where a debate is underway about how to incorporate a fully formalised state of exception in the US constitution. While the Bush administration had tried simply to put the naval base at Guantanamo beyond the law, these proposals envisage a scenario in which the law might be suspended. The chief supporter of such a provision is Bruce Ackerman who teaches at Yale (and is an LRB contributor). According to Ackerman, who is associated with the left, it should be specified in the constitution exactly when and how it can be suspended precisely so that it need not be abandoned entirely in times of emergency: during a terrorist attack, for example. The problem with this argument is that it fails to take into account the possibility that an executive may invoke the state of exception, only then to defy the constitutional limits imposed on that state. Ackerman trusts the executive to bow to the constitution at the very moment it suspends it. More troubling than this contradiction are its consequences: the judiciary would no longer impose limits on an executive eager to resort to the state of exception, as the Supreme Court has hesitantly done in Guantanamo. Instead, the court would legalise it. To be sure, Ackerman is highly critical of what the executive has done at Guantanamo; he offers his proposal as a way of managing an executive intent on using the state of exception wherever it can. However, its implementation might lead to a situation even worse than the one admitted by the present arrangement, since it would anchor the emergency in the heart of the law.

While legal scholars debate the codification and incorporation of the state of exception into law, the executive has been engaged in emergency scenarios of its own. Before the November election, the Bush-elected chair of the US Election Assistance Commission, DeForest Soaries, made an unprecedented request to the Department of Homeland Security asking it to demand Congressional authorisation for the Commission to postpone the election in the case of a terrorist attack.

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