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Adam Roark. Pure Law and Bare Life in CIA Prisons

Adam Roark writes

Pure Law and Bare Life in CIA Prisons

In November 2005, leaked top-secret information revealed the existence of a global network of secret CIA prisons wherein prisoners are held and processed “without judicial involvement” (Associated Press). Identified as ‘detainees’ or ‘enemy combatants,’ these prisoners are held without designation as citizens, who are subjects of constitutional rights and law, but rather as suspected terrorists who cannot be managed in a constitutional manner. While initially it appeared that the revelation of the CIA prison network would become the grounds for partisan fighting in the US, instead, the Washington Post reports “the CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held”. The aftermath of the media exposure of the prisons reveals that the creation, execution, and disappearance of the prison network demonstrate Agamben’s thesis of a ‘permanent state of exception’ and the emergence of pure law.

       Agamben describes the ‘state of exception’ as suspension of law itself by the law. The state of exception is inherently difficult to define, yet has a “close relationship to civil war, insurrection, and resistance” (3; 2005). It signals internal conflict and the state-sanctioned breakdown of normal law. The application of the state of exception, either de facto or de jure, is the basic indicator of a relationship between sovereign power and life. For example, the consistent rhetoric of the U.S. that the War on Terror is a global conflict indicates the relationship between states and their subjects, engulfed in a state of exception.

As a model for the modern state of exception, Agamben uses the Roman law of iustitium, which called upon various sectors of government and citizenry (depending on the extremity of the emergency) to take whatever measures they deem necessary for the salvation of the state (41;2005). The iustitium explicitly articulated the players in the state of exception: it organized the subjects of the state to transcend the juridical order for the sake of preserving the sovereignty of state law. Further, Carl Schmidt originally defined the sovereign as ‘he who decides on the state of exception’. Therefore the state of exception expresses the nature of a relationship between sovereign and subjects.

In modern times, however, the bureaucratic apparatus of the state interferes with the raw power of the state of exception. The designation of the human subject as citizen, with accompanying rights and juridical process, inherently limits the power of the sovereign which, in the state of exception, requires absolute power to overcome internal conflict. In this context, the new relationship between sovereign and subject can be defined as pure law. Pure law strips the citizen down to its naked form, termed ‘bare life’ by Agamben. No longer a citizen, bare life is controlled and punished in the most raw and violent manner, reversing the evolution of methods of sovereignty from industrial discipline and republicanism to medievalist gratuitousness.

The creation of a prison network
“The idea of holding terrorists outside the US legal system was not under consideration before Sept. 11, 2001, not even for Osama bin Laden, according to former government officials” writes Dana Priest of the Washington Post. This is a strategic assessment, however, not a juridical discourse. Priest is not speculating on the legality of secret prisons. Rather, she is noting September 11th as a milestone in U.S. political action. September 11th did not usher in significant changes to the US juridical structure, as subsequent legislation expresses a continuity from the Alien and Sedition Acts through McCarthyism and COINTELPRO. However, it marked a drastic increase in the use of pure law over subjects around the globe.

The secret prisons are what Agamben refers to as a camp. Rooted in Nazi concentration camps, the camp is the space that opens between sovereignty and law when the state of exception is the rule (39; 2000). In the camp, the conflict is not between citizen (who has rights) and the state (which has a juridical structure and judicial process). In the camp the conflict is between sovereign and bare life, the human reduced to its biological definition. It is in the camp that enemy combatants, as the public and legal systems know them, can be chained naked to the ground and freeze to death as part of the exercise of power over bodies.

The camp is the manifestation of the state of exception, the missing theoretical link between the Final Solution and the War on Terror. The connection is not any similarity between Bush and Hitler, Poland and Iraq, or Blitzkrieg and Pre-emptive Strike. The camp is the space outside of the law which is created and carefully managed in order to pursue the ends of the state. Just as Auschwitz and Guantanamo are gratuitous means of managing crises of national security, they are similar in the remarkable ease with which their sovereigns strip citizens down to bare life and command them in an extra-legal space.

        In response to initial revelations of the prison network, Bush stated on November 7, 2005 that ‘any activity we conduct is within the law’ (BBC News). The sovereign, who can decide the state of exception, guarantees its anchorage to the juridical order (35; 2005). If the prison network exists within any law, it is within pure law, a raw and total sovereignty acting directly upon bodies in the state of exception. Pure law serves as the nexus between violence and law (88; 2005), separating the U.S. state from the violence of its camps while maintaining a clear relationship to law and order.

The same day that Bush clarified the U.S. position on the secret prisons, the U.S. Supreme Court allowed an ACLU challenge to the use of military tribunals for detainee Salim Ahmed Hamdan. Hamdan, bin Laden’s former driver, is linked to the juridical order via military tribunal and is thus accessible to the constitutional process. The intervention of the judicial system allows Hamdan to be identified as a citizen rather than as bare life under the sovereign. CIA detainees, however, exist entirely within the space of the camp and are thus inaccessible to constitutional order. The case of Hamdan as opposed to the secret detainees provide two contrasting models of sovereignty, emphasizing the divide between human, the subject of pure law, and citizen, the subject of constitutional law. Hamdan perhaps was fortunate enough to escape pure law due to the often non-inscribed, uncertain nature of extra-juridical sovereignty.

The exposure of pure law

        Much of the information known about the prison network was obtained not from government documents, but from flight logs which revealed secret flights in Poland and Romania and satellite images of the camps. This is perhaps another trademark of pure law: it is not apparent through judicial process, governmental transparency or the sphere of politics. Pure law is evident through its movement and manipulation of bodies. The juridical structure appears alongside the camps, but pure law remains uncontainable, perhaps inconceivable, in the realm of politics. Even legal action by the European Union fails to bring pure law within the juridical order; the erosion of the rights of citizens and state corresponds directly to the rise of the human as subject.

        This new subjectivity also means a new form of knowledge production. As the decline of the juridical order weakens sentencing and discipline as a method of intelligence-gathering, it gives rise to the regressive use of torture and interrogation. Just as in the pre-capitalist order, sovereign power depends on its pure violence over bare life. Foucault’s model of pre-capitalist sovereignty involves a juridically-inscribed spectacular punishment (torture) which demonstrates the power of the sovereign over criminals. Unlike pre-capitalist sovereignty, however, pure law needs no juridical inscription to enact its punishment. Pure law does not rely on visible and spectacular punishment, rather it rests on the violence of a military and genocidal scale within the order of the state. Pure law invokes Auschwitz, East Timor, West Bank, and Sadr City, sovereignty and order established over bare life at all costs and without true witness.

  The image of the Abu Ghraib detainee, shrouded in a black hood with arms outstretched, has become the universal symbol of the new human subject in the state of exception. The totality of the state of exception is expressed by this symbol of the tortured enemy combatant. The Abu Ghraib detainee is a historic anomaly: it is a globally recognized symbol of the oppressed. Where resistance movements across the globe from Iraqi insurgents to the U.S. anti-war movement suffer from incommunicability in their struggle, the detainee image is as universal as the sovereignty it opposes.

The disappearance of the camps

        The closing of the Eastern European prisons was reported by ABC News as coincident with the transfer of eleven alleged al-Qaeda suspects to a CIA site in northern Africa. The state of exception was not reversed nor even successfully challenged. When the European Union began investigating the reports of the prisons, it made no further strides than emphasizing that "holding foreign nationals on Polish territory would be illegal”. The European Union was unable to designate the detainees as foreign nationals. What is known at best is in which country the detainees were captured. There is no precedent for identifying subjects in the camp as citizens and returning them to the juridical order. Regaining the rights of citizen is as improbable in CIA prisons as it was in Nazi concentration camps.

The CIA, White House, and Department of Defense refused to acknowledge the existence of the prisons, which are also categorized as ‘black sites’ (Aljazeera.com). The black sites are not announced, disclosed, nor denied and hidden. Even the terminology suggests darkness, a void in the juridical order. Expert media sources assumed the anonymous pseudonyms of “former and current U.S. officials”. Through a series of anonymous comments, vague disavowals of knowledge, and indirect responses, the U.S. creates a political space between international law and illegality. In response to European criticism of CIA activity, Secretary of State Condoleezza Rice asserted that the U.S. does not allow torture and respects principles of the Geneva Convention (Associated Press). This response simultaneously deflects doubts about the legality of the camps and suggests their compatibility with established law. Between nomos and anomie, between legal structure and illegality, the state of exception both reinforces the law and negates it.

The state of exception and the onset of pure law is indicative of the decomposition of a prior form of legality. Agamben concludes:

‘it is evident that the European nation-states no longer have any assignable historical tasks… Humankind has by now reached it historical telos and all that is left to accomplish is to depoliticize human societies either by unfolding unconditionally the reign of [economy] or by undertaking biological life itself as supreme political task’ (140; 2000).

Agamben identifies the decline of the state as guardian of nation and rights, of the commonwealth as the fulfillment [exhaustion] of the historical task of the state. This exhaustion leads to the undertaking of naked life as political subject, to the emergence of the camp as force of law. This is most clearly indicated by the difficulty presented by the suicide bomber, the terrorist whose naked life is turned against the sovereign as a weapon. It is this difficulty, this crisis, which serves as the pivot to state of exception.


Agamben, Giorgio, Means Without Ends. Trans by Vincenzo Binetti and Cesare Casarino. University of Minnesota, Minneapolis 2000.
Agamben, Giorgio, State of Exception. Trans by Kevin Attell. University of Chicago,
Chicago 2005.

“CIA shuts down its secret prisons in Europe”. 7 January 2006, Aljazeera.com.
http://www.aljazeera.com/cgi-bin/news_service/midd le_east_full_story.asp?

Dempsey, Judy and Kanter, James, “Europe looking into report of CIA jails”.
4 November 2005, The New York Times. http://www.truthout.org/docs_2005/110405J.shtml (secondary)

“EU threatens sanctions for states operating secret CIA camps”. 29 November 20005,
Angence France-Presse. http://www.truthout.org/docs_2005/112905I.shtml (secondary)

“First ‘real evidence’ on CIA secret jails- Report”. 10 January 2006, Aljazeera.com.
http://www.aljazeera.com/cgi-bin/news_service/midd le_east_full_story.asp?

Foucault, Michel. “Discipline and Punish: The Birth of the Prison”, trans by Alan
Sheridan 1977. New York: Vintage Books 1995.

Gardiner, Beth, “Europe still worried about torture reports”. 9 December 2005,
Associated Press. http://www.boston.com/news/world/europe/articles/2 005/12/09/

“Intelligence leak refuels CIA prison claim”. 10 January 2006, EurActiv.com http://www.euractiv.com/Article?tcmuri=tcm:29-1513 57-16&type=News

Priest, Dana, “CIA holds terror suspects in secret prisons”. 2 November 2005,
Washington Post. http://www.washingtonpost.com/wp-dyn/

“Swiss lawmaker cites CIA prison evidence”. 13 December 2005, Associated Press.

“US does not torture, Bush insists”. 7 November 2005, BBC News.