Now we finally learned what we all suspected: the numerous reports and testimonies about the Guantanamo and Abu Ghraib prisons were a trap to distract the attention of the public from the true secret: in the last days, big media reported that the CIA operates secret detention facilities beyond the reach of the law and outside official oversight at bases in two eastern European countries and some other Asian countries. The CIA has not even acknowledged the existence of these "black sites" with "ghost prisoners": to do so could open the U.S. government to legal challenges, since the prisoners are there submitted to "Enhanced Interrogation Techniques" (the US newspeak for torture). The original idea was to hide and interrogate the two dozen or so al Qaeda leaders believed to be responsible for the Sept. 11 attacks, or who posed an imminent threat; but as the CIA began apprehending more people whose intelligence value and links to terrorism were less certain, the original standard for consigning suspects to the invisible universe was lowered or ignored.
What is effectively going on here? In a debate about the fate of Guantanamo prisoners on NBC about a year ago, one of the weird arguments for the ethico-legal acceptability of their status was that "they are those who were missed by the bombs": since they were the target of the US bombing and accidentally survived it, and since this bombing was part of a legitimate military operation, one cannot condemn their fate when they were taken prisoners after the combat - whatever their situation, it is better, less severe, than being dead... This reasoning tells more than it intends to say: it puts the prisoner almost literally into the position of living dead, those who are in a way already dead (their right to live forfeited by being legitimate targets of murderous bombings), so that they are now cases of what Giorgio Agamben calls homo sacer, the one who can be killed with impunity since, in the eyes of the law, his life no longer counts.
There is a vague similarity between their situation and the - legally problematic - premise of the movie Double Jeopardy: if you were condemned for killing A and you later, after serving your term and being released, discover that A is still alive, you can now kill him with impunity since you cannot be condemned two times for the same act. In psychoanalytic term, this killing would clearly display the temporal structure of masochist perversion: the succession is inverted, you are first punished and thus gain the right to commit the crime. If the Guantanamo prisoners are located in the space "between the two deaths," occupying the position of homo sacer, legally dead (deprived of a determinate legal status) while biologically still alive, the US authorities which treat them in this way are also in a kind of in-between legal status which forms the counterpart to homo sacer: acting as a legal power, their acts are no longer covered and constrained by the law - they operate in an empty space that is still within the domain of the law.
The exemplary economic strategy of today's capitalism is outsourcing - giving over the "dirty" process of material production (but also publicity, design, accountancy...) to another company via a subcontract. In this way, one can easily avoid ecological and health rules: the production is done in, say, Indonesia where the ecological and health regulations are much lower than in the West, and the Western global company which owns the logo can claim that it is not responsible for the violations of another company. Are we not getting something homologous with regard to torture? Is torture also not being "outsourced," left to the Third World allies of the US which can do it without worrying about legal problems or public protest? Was such outsourcing not explicitly advocated by Jonathan Alter in Newsweek immediately after 9/11? After stating that "we can't legalize torture; it's contrary to American values," he nonetheless concludes that "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."<ref>Jonathan Alter, "Time to Think about Torture," Newsweek, November 5 2001, p. 45.</ref> This is how, today, the First World democracy more and more functions: by way of "outsourcing" its dirty underside to other countries... We can see how this debate about the need to apply torture was by no means academic: today, Americans even do not trust their allies to do the job properly; the "less squeamish" partner is the disavowed part of the US government itself - a quite logical result, once we recall how the CIA taught the Latino American and Third World American military allies the practice of torture for decades. And, insofar as the predominant skeptical liberal attitude can also be characterized as the one of "outsourced beliefs" (we let the primitive others, "fundamentalists," do their believing for us), does the rise of new religious fundamentalisms in our own societies not signal how the same distrust towards the Third World countries: not only are they not able to do our torturing for us, they even can no longer do our believing for us...
However, the two procedures can also co-exist: US government agencies running the "war on terror" follow a secret program known as "extraordinary rendition": the policy of seizing suspicious individuals without even the semblance of due process and sending them off to be interrogated by allied regimes known to practice torture.<ref>Bob Herbert, "Outsourcing torture," International Herald Tribune, February 12-13 2005, p. 4.</ref> Another mode of co-existence are also the CIA "black sites," located in foreign countries, but operated by CIA.
So what about the "realistic" counter-argument: the war on terror IS dirty, one is put in situations where life of thousands depends on informations we can get from our prisoners; consequently, as Alan Dershowitz put it: “I'm not in favor of torture, but if you're going to have it, it should damn well have court approval." The underlying logic - "Since we are in any case doing it, better to legalize it and thus prevent excesses!" - is extremely dangerous: it gives legitimacy to torture and thus opens up the space for MORE illicit torture. Against the liberal "honesty" of Derschowitz, one should therefore paradoxically stick to the apparent "hypocrisy": OK, one can well imagine that, in a singular situation, confronted with the proverbial "prisoner who knows" and whose words can save thousands, one would recourse to torture - however, even (or, rather, precisely) in such a case, it is absolutely crucial that one does NOT elevate this desperate choice into a universal principle; following the unavoidable brutal urgency of the moment, one should simply DO IT. Only in this way, in the very inability or prohibition to elevate what we had to do into a universal principle, one retains the sense of guilt, the awareness of the inadmissibility of what we did.
In March 2005, the US were in the grip of the Terri Schiavo case: she suffered brain damage in 1990 when her heart stopped briefly from a chemical imbalance believed to have been brought on by an eating disorder; court-appointed doctors claimed she is in a persistent vegetative state with no hope of recovery. While her husband wanted her disconnected to die in peace, her parents argued that she could get better and that she would never have wanted to be cut off from food and water. The case reached the top level of the US government and judicial bodies, with the Supreme Court and President involved, the Congress passing fast-track resolutions, etc. The absurdity of the situation, when put in the wider context, is breath-taking: with tens of millions dying of AIDS and hunger all around the world, the public opinion in the US focused on a single case of prolonging the run of NAKED LIFE, of a persistent vegetative state reduced of all specifically human characteristics. THIS is the truth of what the Catholic Church means what its representatives talk about the "culture of life" as opposed to the "culture of death" of contemporary nihilistic hedonism. What we encounter here is effectively a kind of Hegelian infinite judgment which asserts the speculative identity of the highest and the lowest: the Life of the Spirit, divine spiritual dimension and the life reduced to inert vegetation... These are the two extremes we find ourselves today with regard to human rights: one the one hand those "missed by the bombs" (mentally and physically full human beings, but deprived of rights), on the other hand a human being reduced to bare vegetative life, but this bare life protected by the entire state apparatus.
What legitimizes such biopolitics is the mobilization of the fantasmatic dimension of the potential/invisible threat: it is the invisible (and for that very reason all-powerful and omni-present) threat of the Enemy that legitimizes the permanent state of emergency of the existing Power (Fascists invoked the threat of the Jewish conspiracy, Stalinists the threat of the class enemy - up to today's "war on terror," of course). This invisible threat of the Enemy legitimizes the logic of the preemptive strike: precisely because the threat is virtual, it is too late to wait for its actualization, one has to strike in advance, before it will be too late... In other words, the omni-present invisible threat of Terror legitimizes the all too visible protective measures of defense (which pose the only TRUE threat to democracy and human rights, of course). If the classic power functioned as the threat which was operative precisely by way of never actualizing itself, by way of remaining a threatening GESTURE (and this functioning reached its climax in the Cold War, with the threat of the mutual nuclear destruction which HAD to remain a threat), with the war on terror, the invisible threat causes the incessant actualization - not of itself, but - of the measures against itself. The nuclear strike had to remain the threat of a strike, while the threat of the terrorist strike triggers the endless series of strikes against potential terrorists... The power which presents itself as being all the time under threat, living in mortal danger, and thus merely defending itself, is the most dangerous kind of power, the very model of the Nietzschean ressentiment and moralistic hypocrisy - and, effectively, was it not Nietzsche himself who, more than a century ago, provided the best analysis of the false moral premises of today's "war on terror"?
"No government admits any more that it keeps an army to satisfy occasionally the desire for conquest. Rather the army is supposed to server for defense, and one invokes the morality that approves of self-defense. But this implies one's own morality and the neighbor's immorality; for the neighbor must be thought of as eager to attack and conquer if our state must think of means of self-defense. Moreover, the reasons we give for requiring an army imply that our neighbor, who denies the desire for conquest just as much does our own state, and who, for his part, also keeps an army only for reasons of self-defense, is a hypocrite and a cunning criminal who would like nothing better than to overpower a harmless and awkward victim without any fight. Thus all states are now ranged against each other: they presuppose their neighbor's bad disposition and their own good disposition. This presupposition, however, is inhumane, as bad as war and worse. At bottom, indeed, it is itself the challenge and the cause of wars, because as I have said, it attributes immorality to the neighbor and thus provokes a hostile disposition and act. We must abjure the doctrine of the army as a means of self-defense just as completely as the desire for conquests."<ref>Friedrich Nietzsche, Sämtliche Werke: Kritische Studienausgabe, Vol. 2, Berlin: Walter de Gruyter 1980, p. 678.</ref>