Torture and the State of Exception

Politico recently reported that, according to Bush Administration speech writer Marc Theissen, Khalid Sheikh Mohammed mocked his captors at Guantánamo while being waterboarded. "KSM figured out waterboarding," Theissen said at the American Enterprise Institute last week. "He figured out the limits," and allegedly counted off seconds until his interrogators were required to pull back.

Theissen's comments seem to suggest that the problem with the Bush Administration's waterboarding policy was that it did not allow agents of the government to go far enough. For me, reading from selections of the Torture Memos provides enough evidence that this assessment is misguided at best--and insane or inhuman at worst. Yet somehow the debate about the merits of waterboarding persists.  I have been struck in the past few weeks by the quiet resumption of what I thought was a closed matter: that waterboarding yielded little in the way of useful information at Guantánamo Bay.

The fact that this debate has reemerged in the wake of the death of Osama bin Laden points to a much larger and more complicated issue explored by Nasser Hussein in a 2006 article in Critical Inquiry called "Beyond Norm and Exception."  For Hussein, the continued existence of the detention center at Guantánamo and the torturing of inmates there during the post-9/11 period, points to a pressing problem regarding the "state of exception" in contemporary democracy.  He argues that "exceptional laws seem to deserve that appellation to the extent that they are occasioned by an exceptional circumstance (such as the attacks of 9/11)." That is, laws enacted during a so-called "state of exception" no longer carry with them the promise of being repealed at the end of an emergency. Rather, governments use exceptional "circumstances" as an excuse to expand indefinitely their sovereignty over a greater portion of ordinary life.

In other words, while the central matter of justice to consider when thinking about waterboarding undoubtedly relates to the lives of those being tortured, we must also ask what about our ordinary life is destabilized when we find ourselves subjects of a government that tortures. Hussein points to the proliferation of laws, distinctions, technicalities and procedures that accompany the initiation of a so-called emergency or state of exception.  Rather than the suspension of rights (the traditional case is habeas corpus, "what one witnesses in contemporary emergency is a proliferation of new laws and regulations passed in an ad hoc or tactical manner, administrative procedures, and the use of older laws and cases tweaked and transformed for newer purposes." In essence, we get the torture memos and the enhanced interrogation and detention practices at Guantánamo.  But this is the extreme case of what Hussein suggests is a more complex web of laws and regulations that govern ordinary spaces in the space of an indefinite emergency.

That is, if we consider the post-9/11 world to be one fraught with legislation enacted to protect the homeland, increase security, prevent increased terrorist attacks, etc--then it seems impossible to imagine that we will never be "back to normal" (to return to the phrasing of Lucien, the protagonist of Deborah Eisenberg's short story "Twilight of the Superheroes"). Or more to the point, we'll never be out of this particular state of exception. Rather, our society is permanently marked by the enhanced governmental authority granted in the wake of 9/11.

What then does it mean to be subject to the authority of a state that tortures in the post-9/11 world? What does it mean if that state decides it will no longer torture (for real, this time, we are assured)? Hussein's argument seems to suggest that, even if the United States no longer tortures, we will still live under conditions of exception, for the pertinent problem is that we will still live in a state that has the authority to break its own laws in the interest of using a supposed exception to augment its authority.