A State of Exception

Engin Obucic May/June 2007

The Guantánamo Bay detention centre, set up in January of 2002 at the U.S. naval base in southeast Cuba, has recently seen its fifth anniversary. Established by the U.S. government as an urgent response to terrorism, the detention centre has given rise to allegations of indecent treatment of inmates, religious discrimination, and indeed, torture. 

Common criticism of the Guantánamo affair pertains to the incarceration of detainees without trial, coupled with the incidents of torture and personal humiliation. To the international public Guantánamo, or Gitmo, as it is called, stands not only as a troubling disavowal of elementary humanitarian standards but as a significant breach of democratic norms. The head of Britain's judiciary, Lord Falconer, "denounced Guantánamo Bay as a 'shocking affront to democracy'" and cautioned that "nations must not sacrifice values in the fight against terrorism" 

This has become evident in the controversial treatment of Guantánamo detainees who are being held without substantiated charges and without ethically independent legal representation. They have neither been relocated elsewhere nor have they been granted any truly satisfactory legal interpretation of their incarceration. ."  

Ironically, Guantánamo has been set up by the government of a nation which has a democratic constitution. The basic norms for Western-style democracy require that every individual has the right within the judicial framework to legal and public representation. Every individual is a subject visible to the legal order of the democratic state. Their full visibility and participation in the legal system is respected and indeed foundational to Western democracy. However, when a democratic system permits the removal of these basic legal rights, it does so in the context of the so-called "state of exception." 

A state of exception is a form of governance characterized by suspension of the democratic legal process in a favor of "extra judicial state violence" against specified groups. It depends upon a certain political climate and may arise in any democracy. States or nations are by their very nature organisms of self-assertion and identification. Geographic boundaries are not the only means by which a state or nation identifies and separates itself as an independent governing body. Encoded within nations is a clear awareness of normalcy as endorsed by the status quo. Any rupture to the norm has the potential to provide a threat to what is seen to characterize the proper function of the state. When a threat is detected by the state or nation, a response is made that results in a shift of attitudes relating to the group in question. Accordingly a perceived threat to the norm instigates a complete paradigm shift. In an attempt to reconsolidate the norm, the political-legal system institutes "extreme measures"  resulting in the marginalization, or incarceration of the threatening elements.

Guantánamo stands as a direct consequence of a form of governance characterized by suspension of the democratic legal process in favor of extrajudicial measures against specified groups. Integrated in the penal system, the Guantánamo inmate is an exemplary element subject to "extreme measures" legalized by the state of exception. According to his legal status, the Guantánamo inmate is synonymous with numerous historical examples of groups and individuals marginalized for their convictions and affiliations: Huguenots, Basques, Kurds, Jews, Christians, Muslim groups, Gypsies, illegal immigrants, African refugees. However, the Guantánamo case is not limited to the current political ambience. It is a potential prelude to situations that may deny the political convictions and civic values of given minority groups. 

Consider the following example:

The biblical writer Matthew specifies a group that will eventually become subject to the state of exception. This minority will not be integrated into the legal order:

"Nation will rise against nation, and kingdom against kingdom.

 "There will be famines and earthquakes in various places. 

"All these are the beginning of birth pains.

"Then you will be handed over to be persecuted and put to death, and you will be hated by all nations because of me" (Matthew 24:7-9, New International Version).

From an impartial statement of fact in verse 7, we rapidly move to verse 9, which identifies the persecuted minority. The "you" of verse 9 are those who are one day to be handed over, persecuted, and put to death—hated by all nations. According to the text, this group of Matthew 24 will live at a time "in which the rule of law is routinely displaced by the state of exception, or emergency, and people are increasingly subject to 'extrajudicial state violence.'" 

This prompts us to pose the following question: What judicially allows a state to hand over, persecute, execute, and hate or, in Aga-mben's terminology, "eliminate" others?

Agamben contends that a democratic state may transform into a totalitarian state. When this change occurs, the state of exception culminates in a routine "suspension of law." 

The totalitarian state therefore allows for "extrajudicial" violence, which includes persecution and elimination of threatening civic elements that resist integration into the political system. This state of exception provides the context which permits the implementation of extrajudicial forms of legalized violence.

Agamben concludes:

"We can define modern totalitarianism as the institution, by way of a state of emergency, of a legal civil war that permits the elimination not only of political adversaries, but whole categories of the population that resist being integrated into the political system." 

Should current political trends be retained as relevant political options, whereby "the rule of law is routinely displaced by the state of exception, or emergency,"  they will continue to be used as a warranted legal mechanism, by any nation or state, a mechanization that allows for the marginalization, isolation, and aggressive persecution of identified groups. It seems plausible that the state of exception will become a more routine reality for now unspecified minorities, religious and otherwise, who will find themselves subject to such extrajudicial processes.

Sarah Lobegeiger holds degrees in English Literature and Language and Culture, from Curtin University of Technology, Perth, Australia.


Note: The legal terminology in the article has been reviewed and approved by Aleksandar Vukovic, the former bureau chief for case law of the European Court in Strasbourg, at Supreme Court BH.

1 Sydney Morning Herald. "Guantánamo: an Affront to Democracy," 27 January 2007. www.smh.com.au.
2 See Agamben, Giorgio, "State of Exception" (The University of Chicago Press, 2004).
3 Bull, Malcolm, London Review of Books, 4 September 2006. www.press.uchicago.edu/Misc/Chicago/009254.html.
4 Ibid.
5 Bull, loc. cit.
6 Ibid.
7 Ibid.
8 Bull, loc. cit. 

Article Author: Engin Obucic

Engin Obucic holds an honors degree in Philosophy and Studies in Religion from the University of Queensland, Australia. He is originally from Bosnia and Herzegovina.