When Donald Rumsfeld designated the imprisoned Taliban fighters 'unlawful combatants' (as opposed to 'regular' prisoners of war), he did not simply mean that their criminal terrorist activity placed them outside the law: when an American citizen commits a crime, even one as serious as murder, he remains a 'lawful criminal'. The distinction between criminals and non-criminals has no relation to that between 'lawful' citizens and the people referred to in France as the 'Sans Papiers'. Perhaps the category of homo sacer, brought back into use by Giorgio Agamben in Homo Sacer: Sovereign Power and Bare Life (1998), is more useful here. It designated, in ancient Roman law, someone who could be killed with impunity and whose death had, for the same reason, no sacrificial value. Today, as a term denoting exclusion, it can be seen to apply not only to terrorists, but also to those who are on the receiving end of humanitarian aid (Rwandans, Bosnians, Afghans), as well as to the Sans Papiers in France and the inhabitants of the favelas in Brazil or the African American ghettoes in the US.
Concentration camps and humanitarian refugee camps are, paradoxically, the two faces, 'inhuman' and 'human', of one sociological matrix. Asked about the German concentration camps in occupied Poland, 'Concentration Camp' Erhardt (in Lubitsch's To Be or Not to Be) snaps back: 'We do the concentrating, and the Poles do the camping.' A similar distinction applies to the Enron bankruptcy, which can be seen as an ironic comment on the notion of a risk society. Thousands of employees who lost their jobs and savings were certainly exposed to a risk, but without having any real choice: what was risk to those in the know was blind fate to them. Those who did have a sense of the risks, the top managers, also had a chance to intervene in the situation, but chose instead to minimise the risk to themselves by cashing in their stocks and options before the bankruptcy - actual risks and choices were thus nicely distributed. In the risk society, in other words, some (the Enron managers) have the choices, while others (the employees) take the risks.
The logic of homo sacer is clearly discernible in the way the Western media report from the occupied West Bank: when the Israeli Army, in what Israel itself describes as a 'war' operation, attacks the Palestinian police and sets about systematically destroying the Palestinian infrastructure, Palestinian resistance is cited as proof that we are dealing with terrorists. This paradox is inscribed into the very notion of a 'war on terror' - a strange war in which the enemy is criminalised if he defends himself and returns fire with fire. Which brings me back to the 'unlawful combatant', who is neither enemy soldier nor common criminal. The al-Qaida terrorists are not enemy soldiers, nor are they simple criminals - the US rejected out of hand any notion that the WTC attacks should be treated as apolitical criminal acts. In short, what is emerging in the guise of the Terrorist on whom war is declared is the unlawful combatant, the political Enemy excluded from the political arena.
This is another aspect of the new global order: we no longer have wars in the old sense of a conflict between sovereign states in which certain rules apply (to do with the treatment of prisoners, the prohibition of certain weapons etc). Two types of conflict remain: struggles between groups of homo sacer - 'ethnic-religious conflicts' which violate the rules of universal human rights, do not count as wars proper, and call for a 'humanitarian pacifist' intervention on the part of the Western powers - and direct attacks on the US or other representatives of the new global order, in which case, again, we do not have wars proper, but merely 'unlawful combatants' resisting the forces of universal order. In this second case, one cannot even imagine a neutral humanitarian organisation like the Red Cross mediating between the warring parties, organising an exchange of prisoners and so on, because one side in the conflict - the US-dominated global force - has already assumed the role of the Red Cross, in that it does not perceive itself as one of the warring sides, but as a mediating agent of peace and global order, crushing rebellion and, simultaneously, providing humanitarian aid to the 'local population'.
This weird 'coincidence of opposites' reached its peak when, a few months ago, Harald Nesvik, a right-wing member of the Norwegian Parliament, proposed George W. Bush and Tony Blair as candidates for the Nobel Peace Prize, citing their decisive role in the 'war on terror'. Thus the Orwellian motto 'War is Peace' finally becomes reality, and military action against the Taliban can be presented as a way to guarantee the safe delivery of humanitarian aid. We no longer have an opposition between war and humanitarian aid: the same intervention can function at both levels simultaneously. The toppling of the Taliban regime is presented as part of the strategy to help the Afghan people oppressed by the Taliban; as Tony Blair said, we may have to bomb the Taliban in order to secure food transportation and distribution. Perhaps the ultimate image of the 'local population' as homo sacer is that of the American war plane flying above Afghanistan: one can never be sure whether it will be dropping bombs or food parcels.
This concept of homo sacer allows us to understand the numerous calls to rethink the basic elements of contemporary notions of human dignity and freedom that have been put out since 11 September. Exemplary here is Jonathan Alter's Newsweek article 'Time to Think about Torture' (5 November 2001), with the ominous subheading: 'It's a new world, and survival may well require old techniques that seemed out of the question.' After flirting with the Israeli idea of legitimising physical and psychological torture in cases of extreme urgency (when we know a terrorist prisoner possesses information which may save hundreds of lives), and 'neutral' statements like 'Some torture clearly works,' it concludes:
We can't legalise torture; it's contrary to American values. But even as we continue to speak out against human-rights abuses around the world, we need to keep an open mind about certain measures to fight terrorism, like court-sanctioned psychological interrogation. And we'll have to think about transferring some suspects to our less squeamish allies, even if that's hypocritical. Nobody said this was going to be pretty.
The obscenity of such statements is blatant. First, why single out the WTC attack as justification? Have there not been more horrible crimes in other parts of the world in recent years? Secondly, what is new about this idea? The CIA has been instructing its Latin American and Third World military allies in the practice of torture for decades. Even the 'liberal' argument cited by Alan Dershowitz is suspect: 'I'm not in favour of torture, but if you're going to have it, it should damn well have court approval.' When, taking this line a step further, Dershowitz suggests that torture in the 'ticking clock' situation is not directed at the prisoner's rights as an accused person (the information obtained will not be used in the trial against him, and the torture itself would not formally count as punishment), the underlying premise is even more disturbing, implying as it does that one should be allowed to torture people not as part of a deserved punishment, but simply because they know something. Why not go further still and legalise the torture of prisoners of war who may have information which could save the lives of hundreds of our soldiers? If the choice is between Dershowitz's liberal 'honesty' and old-fashioned 'hypocrisy', we'd be better off sticking with 'hypocrisy'. I can well imagine that, in a particular situation, confronted with the proverbial 'prisoner who knows', whose words can save thousands, I might decide in favour of torture; however, even (or, rather, precisely) in a case such as this, it is absolutely crucial that one does not elevate this desperate choice into a universal principle: given the unavoidable and brutal urgency of the moment, one should simply do it. Only in this way, in the very prohibition against elevating what we have done into a universal principle, do we retain a sense of guilt, an awareness of the inadmissibility of what we have done.
In short, every authentic liberal should see these debates, these calls to 'keep an open mind', as a sign that the terrorists are winning. And, in a way, essays like Alter's, which do not openly advocate torture, but just introduce it as a legitimate topic of debate, are even more dangerous than explicit endorsements. At this moment at least, explicitly endorsing it would be rejected as too shocking, but the mere introduction of torture as a legitimate topic allows us to court the idea while retaining a clear conscience. ('Of course I am against torture, but who is hurt if we just discuss it?') Admitting torture as a topic of debate changes the entire field, while outright advocacy remains merely idiosyncratic. The idea that, once we let the genie out of the bottle, torture can be kept within 'reasonable' bounds, is the worst liberal illusion, if only because the 'ticking clock' example is deceptive: in the vast majority of cases torture is not done in order to resolve a 'ticking clock' situation, but for quite different reasons (to punish an enemy or to break him down psychologically, to terrorise a population etc). Any consistent ethical stance has to reject such pragmatic-utilitarian reasoning. Here's a simple thought experiment: imagine an Arab newspaper arguing the case for torturing American prisoners; think of the explosion of comments about fundamentalist barbarism and disrespect for human rights that would cause.
When, at the beginning of April, the Americans got hold of Abu Zubaydah, presumed to be the second-in-command of al-Qaida, the question 'Should he be tortured?' was openly discussed in the media. In a statement broadcast by NBC on 5 April, Rumsfeld himself claimed that American lives were his first priority, not the human rights of a high-ranking terrorist, and attacked journalists for displaying such concern for Zubaydah's well-being, thus openly clearing the way for torture. Alan Dershowitz presented an even sorrier spectacle. His reservations concerned two particular points: 1. Zubaydah's is not a clear case of the 'ticking bomb' situation, i.e. it is not proven that he has the details of an imminent terrorist attack which could be prevented by gaining access to his knowledge through torture; 2. torturing him would not yet be legally covered - for that to happen, one would first have to engage in a public debate and then amend the US Constitution, while publicly proclaiming the respects in which the US would no longer follow the Geneva Convention regulating the treatment of enemy prisoners.
A notable precursor in this field of para-legal 'biopolitics', in which administrative measures are gradually replacing the rule of law, was Alfredo Stroessner's regime in Paraguay in the 1960s and 1970s, which took the logic of the state of exception to an absurd, still unsurpassed extreme. Under Stroessner, Paraguay was - with regard to its Constitutional order - a 'normal' parliamentary democracy with all freedoms guaranteed; however, since, as Stroessner claimed, we were all living in a state of emergency because of the worldwide struggle between freedom and Communism, the full implementation of the Constitution was forever postponed and a permanent state of emergency obtained. This state of emergency was suspended every four years for one day only, election day, to legitimise the rule of Stroessner's Colorado Party with a 90 per cent majority worthy of his Communist opponents. The paradox is that the state of emergency was the normal state, while 'normal' democratic freedom was the briefly enacted exception. This weird regime anticipated some clearly perceptible trends in our liberal-democratic societies in the aftermath of 11 September. Is today's rhetoric not that of a global emergency in the fight against terrorism, legitimising more and more suspensions of legal and other rights? The ominous aspect of John Ashcroft's recent claim that 'terrorists use America's freedom as a weapon against us' carries the obvious implication that we should limit our freedom in order to defend ourselves. Such statements from top American officials, especially Rumsfeld and Ashcroft, together with the explosive display of 'American patriotism' after 11 September, create the climate for what amounts to a state of emergency, with the occasion it supplies for a potential suspension of rule of law, and the state's assertion of its sovereignty without 'excessive' legal constraints. America is, after all, as President Bush said immediately after 11 September, in a state of war. The problem is that America is, precisely, not in a state of war, at least not in the conventional sense of the term (for the large majority, daily life goes on, and war remains the exclusive business of state agencies). With the distinction between a state of war and a state of peace thus effectively blurred, we are entering a time in which a state of peace can at the same time be a state of emergency.
Such paradoxes also provide the key to the way in which the liberal-totalitarian emergency represented by the 'war on terror' relates to the authentic revolutionary state of emergency, first articulated by St Paul in his reference to the 'end of time'. When a state institution proclaims a state of emergency, it does so by definition as part of a desperate strategy to avoid the true emergency and return to the 'normal course of things'. It is, you will recall, a feature of all reactionary proclamations of a 'state of emergency' that they were directed against popular unrest ('confusion') and presented as a resolve to restore normalcy. In Argentina, in Brazil, in Greece, in Chile, in Turkey, the military who proclaimed a state of emergency did so in order to curb the 'chaos' of overall politicisation. In short, reactionary proclamations of a state of emergency are in actuality a desperate defence against the real state of emergency.
There is a lesson to be learned here from Carl Schmitt. The division friend/enemy is never just a recognition of factual difference. The enemy is by definition always (up to a point) invisible: it cannot be directly recognised because it looks like one of us, which is why the big problem and task of the political struggle is to provide/construct a recognisable image of the enemy. (Jews are the enemy par excellence not because they conceal their true image or contours but because there is ultimately nothing behind their deceiving appearances. Jews lack the 'inner form' that pertains to any proper national identity: they are a non-nation among nations, their national substance resides precisely in a lack of substance, in a formless, infinite plasticity.) In short, 'enemy recognition' is always a performative procedure which brings to light/constructs the enemy's 'true face'. Schmitt refers to the Kantian category Einbildungskraft, the transcendental power of imagination: in order to recognise the enemy, one has to 'schematise' the logical figure of the Enemy, providing it with the concrete features which will make it into an appropriate target of hatred and struggle.
After the collapse of the Communist states which provided the figure of the Cold War Enemy, the Western imagination entered a decade of confusion and inefficiency, looking for suitable schematisations of the Enemy, sliding from narco-cartel bosses to the succession of warlords of so-called 'rogue states' (Saddam, Noriega, Aidid, Milosevic) without stabilising itself in one central image; only with 11 September did this imagination regain its power by constructing the image of bin Laden, the Islamic fundamentalist, and al-Qaida, his 'invisible' network. What this means, furthermore, is that our pluralistic and tolerant liberal democracies remain deeply Schmittean: they continue to rely on political Einbildungskraft to provide them with the appropriate figure to render visible the invisible Enemy. Far from suspending the binary logic Friend/Enemy, the fact that the Enemy is defined as the fundamentalist opponent of pluralistic tolerance merely adds a reflexive twist to it. This 'renormalisation' has involved the figure of the Enemy undergoing a fundamental change: it is no longer the Evil Empire, i.e. another territorial entity, but an illegal, secret, almost virtual worldwide network in which lawlessness (criminality) coincides with 'fundamentalist' ethico-religious fanaticism - and since this entity has no positive legal status, the new configuration entails the end of international law which, at least from the onset of modernity, regulated relations between states.
When the Enemy serves as the 'quilting point' (the Lacanian point de capiton) of our ideological space, it is in order to unify the multitude of our actual political opponents. Thus Stalinism in the 1930s constructed the agency of Imperialist Monopoly Capital to prove that Fascists and Social Democrats ('Social Fascists') are 'twin brothers', the 'left and right hand of monopoly capital'. Thus Nazism constructed the 'plutocratic-Bolshevik plot' as the common agent threatening the welfare of the German nation. Capitonnage is the operation by means of which we identify/construct a sole agency that 'pulls the strings' behind a multitude of opponents. Exactly the same holds for today's 'war on terror', in which the figure of the terrorist Enemy is also a condensation of two opposed figures, the reactionary 'fundamentalist' and the Leftist resistant. The title of Bruce Barcott's article in the New York Times Magazine on 7 April, 'From Tree-Hugger to Terrorist', says it all: the real danger isn't from the Rightist fundamentalists who were responsible for the Oklahoma bombing and, in all probability, for the anthrax scare, but the Greens, who have never killed anyone. The ominous feature underlying all these phenomena is the metaphoric universalisation of the signifier 'terror'. The message of the latest American TV campaign against drugs is: 'When you buy drugs, you provide money for the terrorists!' 'Terror' is thus elevated to become the hidden point of equivalence between all social evils. How, then, are we to break out of this predicament?
An epochal event took place in Israel in January and February: hundreds of reservists refused to serve in the Occupied Territories. These refuseniks are not simply 'pacifists': in their public proclamations, they are at pains to emphasise that they have done their duty in fighting for Israel in the wars against the Arab states, in which some of them were highly decorated. What they claim is that they cannot accept to fight 'in order to dominate, expel, starve and humiliate an entire people'. Their claims are documented by detailed descriptions of atrocities committed by the Israel Defence Forces, from the killing of children to the destruction of Palestinian property. Here is how an IDF sergeant, Gil Nemesh, reports on the 'nightmare reality in the territories' at the protesters' website (www.seruv.org.il):
My friends - forcing an elderly man to disgrace himself, hurting children, abusing people for fun, and later bragging about it, laughing about this terrible brutality. I am not sure I still want to call them my friends . . . They let themselves lose their humanity, not out of pure viciousness, but because dealing with it in any other way is too difficult.
Palestinians, and even Israeli Arabs (officially full citizens of Israel), are discriminated against in the allocation of water, in the ownership of land and countless other aspects of daily life. More important is the systematic micro-politics of psychological humiliation: Palestinians are treated, essentially, as evil children who have to be brought back to an honest life by stern discipline and punishment. Arafat, holed up and isolated in three rooms in his Ramallah compound, was requested to stop the terror as if he had full power over all Palestinians. There is a pragmatic paradox in the Israeli treatment of the Palestinian Authority (attacking it militarily, while at the same time requiring it to crack down on the terrorists in its own midst) by which the explicit message (the injunction to stop the terror) is subverted by the very mode of delivery of that message. Would it not be more honest to say that what is untenable about the Palestinian situation is that the PA is being asked by the Israelis to 'resist us, so that we can crush you'? In other words, what if the true aim of the present Israeli intrusion into Palestinian territory is not to prevent future terrorist attacks, but effectively to rule out any peaceful solution for the foreseeable " future?
For its part, the absurdity of the American view was perfectly rendered in a TV comment by Newt Gingrich on 1 April: 'Since Arafat effectively is the head of a terrorist organisation, we will have to depose him and replace him with a new democratic leader who will be ready to make a deal with the state of Israel.' This isn't an empty paradox. Hamid Karzai is already a 'democratic' leader externally imposed on a people. Whenever Afghanistan's 'interim leader' appears in our media, he wears clothes that cannot but appear as an attractive modernised version of traditional Afghan attire (a woollen cap and pullover beneath a more modern coat etc), his figure thus seeming to exemplify his mission, to combine modernisation with the best of Afghan traditions - no wonder, since this attire was dreamed up by a top Western designer. As such, Karzai is the best metaphor for the status of Afghanistan today.
What if there simply is no 'truly democratic' (in the American sense of the term) Palestinian silent majority? What if a 'democratically elected new leader' is even more anti-Israeli, which wouldn't be surprising since Israel has systematically applied the logic of collective responsibility and punishment, destroying the houses of the entire extended family of suspected terrorists? The point is not the cruel and arbitrary treatment of the Palestinians in the Occupied Territories but that they are reduced to the status of homo sacer, objects of disciplinary measures and/or even humanitarian help, but not full citizens. And what the refuseniks have achieved is a reconceptualisation of the Palestinian from homo sacer to 'neighbour': they treat Palestinians not as 'equal full citizens', but as neighbours in the strict Judeo-Christian sense. And there resides the difficult ethical test for contemporary Israelis: 'Love thy neighbour' means 'Love the Palestinian,' or it means nothing at all.
This refusal, significantly downplayed by the major media, is an authentic ethical act. It is here, in such acts, that, as Paul would have put it, there effectively are no longer Jews or Palestinians, full members of the polity and homines sacri. One should be unabashedly Platonic here: this 'No!' designates the miraculous moment in which eternal Justice momentarily appears in the sphere of empirical reality. An awareness of moments like this is the best antidote to the anti-semitic temptation often clearly detectable among critics of Israeli politics.