PRINT December 2005


NOW WE’VE FINALLY LEARNED what we suspected all along, that the numerous reports and testimonies about the Guantánamo and Abu Ghraib prisons merely distracted the public’s attention from the real secret, which has recently dominated news reports: The Independent in London, for example, described CIA-operated “secret detention facilities beyond the reach of the law and outside official oversight at bases in two eastern European countries,” while other reports mention similar facilities in several Asian countries. The CIA, of course, refuses to acknowledge the existence of these “black sites” and the “ghost prisoners” they hold; to do so would almost certainly subject the US government to legal challenges, since these prisoners are allegedly submitted to “enhanced interrogation techniques” (i.e., torture). The original idea was to hide and interrogate the two dozen or so al-Qaeda leaders believed to be responsible for the September 11 attacks or who posed an imminent threat; but as the CIA began apprehending people whose intelligence value and links to terrorism were less certain, the initial standard for consigning suspects to this invisible universe was lowered or ignored altogether.

What is effectively going on here? In debates about the fate of Guantánamo detainees permeating American airwaves about a year ago, one of the weirdest 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 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; for, whatever their situation, it is better, less severe, than being dead. Such reasoning says more than it intends to say. It puts the prisoner almost literally in the position of the living dead—those who are in a sense already dead (their right to live forfeited by being legitimate targets of murderous bombings), so that they have now achieved the status of what Giorgio Agamben calls homo sacer, he who can be killed with impunity since, in the eyes of the law, his life no longer counts.

There is a vague similarity between the situation of these ghost prisoners and the legally problematic premise of the 1999 movie Double Jeopardy: A woman is condemned for killing her husband and paroled after serving seven years of her term; she soon discovers that he is still alive—and that she can now kill him with impunity since one can’t be tried twice for the same crime. In psychoanalytic terms, this killing would clearly display the temporal structure of masochist perversion, where the succession is inverted: One is first punished and thus gains the right to commit the crime. If the Guantánamo 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 who treat them in this way are also in a kind of in-between legal status that is the counterpart to homo sacer: Though acting as a legal power, their acts are no longer covered and constrained by the law; the paradox here is that of an empty space, a dead zone, that exists within the domain of the law but isn’t itself subject to the rule of law.

The exemplary economic strategy of contemporary capitalism is outsourcing—handing over the “dirty” process of material production (and also publicity, design, accountancy, etc.) to another company via subcontract. In this way, a Western corporation can easily avoid environmental safeguards and safety regulations—simply transfer production to a firm in, say, Indonesia, where restrictions on industry are far less stringent than in the West, and the global company that owns the logo can deny any legal responsibility for the violations. Is this arrangement not homologous to America’s position vis-à-vis torture? Isn’t torture also being “outsourced,” as Jane Mayer argued in the New Yorker last February, left to the third world allies of the US in order to avoid legal problems or public protest back home? Wasn’t such outsourcing explicitly advocated by columnist Jonathan Alter in Newsweek (November 5, 2001) just weeks after 9/11? After stating that “we can’t legalize physical 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.” We can see how this debate about the need to apply torture was by no means academic: Today, Americans don’t even trust their allies to do the job properly; the “less squeamish” partner is now a disavowed part of the US government itself—a quite logical result, considering the CIA’s formidable expertise in the area. (Who, after all, taught the practice of torture for decades to America’s military allies in Latin America and the third world?) And, insofar as the predominant skeptical liberal attitude can also be characterized as one of “outsourced beliefs” (we let the primitive others, “fundamentalists,” do the believing for us), the rise of new religious fundamentalisms in our own societies signals the same distrust toward third world countries: Not only can’t they do our torturing for us, they can’t even do our believing for us anymore.

But in reality, of course, the two procedures coexist. The US government agencies running the “war on terror” have become increasingly reliant on an extralegal practice known as “extraordinary rendition”—a euphemism for a policy of seizing suspicious individuals at home or abroad without even the semblance of due process and sending them off to be interrogated by allied regimes known to practice torture. Not all of the “enhanced” interrogations are farmed out to foreign intelligence services, however: Witness the CIA’s “black sites,” located abroad but covertly operated by the US government. Presumably, “high-value” detainees are whisked away to these undisclosed locations when no foreign proxy can be entrusted to do the job right.

So what about the “realistic” counterargument to this de facto policy of clandestine torture? The war on terror is dirty, the realists begin by admitting. At times the lives of thousands depend on information we may be able to extract from our prisoners. So what do you think the government is going to do? And if we’re going to do it—with great reluctance, of course—then shouldn’t we have checks on the way we do it, to prevent excesses? 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.” This logic is, of course, extremely dangerous: It legitimizes torture and thus opens up the space for more illicit torture. So we must reject the liberal “honesty” of a Dershowitz, but are we now stuck supporting a paradoxical and hypocritical policy of publicly condemning torture while privately practicing it? In a singular situation, confronted with the proverbial “prisoner who knows” and whose words might save thousands, one would unquestionably turn to torture as a last resort; however, it is absolutely crucial that one not elevate this desperate choice into a universal principle. Rather, in the unavoidable, brutal urgency of the moment, one should simply do it. Only by rejecting in principle the notion that torture is permissible even in dire circumstances (while knowing that we resorted to it in precisely such circumstances) can we retain the requisite sense of guilt and awareness of the inadmissibility of what we did.

To grasp properly just how twisted this logic is that legitimizes such disrespect for human rights and dignity, we have only to twist it a little more to arrive at its extreme opposite—indeed, the opposite side of the same coin. In March 2005, America was in the grip of the Terri Schiavo case. Schiavo’s heart had stopped briefly fifteen years earlier, due to a chemical imbalance believed to have been brought on by an eating disorder, and she suffered massive brain damage; court-appointed doctors continually diagnosed her as being in a persistent vegetative state with no hope of recovery. While her husband wanted her feeding tube removed so she could 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 eventually reached the Supreme Court (which repeatedly refused to hear it) and became a cause célèbre among the Christian Right around the nation and in the top levels of government. Congress passed fast-track resolutions to “protect” Schiavo; even the president got involved. The absurdity of the situation, when put in the wider context, was breathtaking: With tens of millions dying of aids and hunger around the world, all three branches of the US government were focused on prolonging the run of a single naked life, a life reduced to a persistent vegetative state, devoid of all specifically human characteristics. This is the truth behind the Catholic Church’s “culture of life,” allegedly standing in opposition to contemporary nihilistic hedonism, or the “culture of death.” What we encounter here, in the Schiavo case, is effectively a kind of Hegelian infinite judgment that asserts the identity of the highest and the lowest, an equivalence between the Life of the Spirit, on the one hand, and life reduced to inert vegetation, on the other.

The fate of Terri Schiavo and the fate of the tortured prisoners are the two extremes of America’s regard for human rights: on the one hand “those missed by the bombs” (mentally and physically complete human beings who must be deprived of all rights), on the other hand a human being reduced to bare vegetative life (the living dead whose “life” must be protected by the entire state apparatus). What these two opposites share is a reduction to bare life. In the Schiavo case, this reduction is a biological reality, which is why her life deserves protection; in the case of tortured prisoners, this reduction is imposed by the state apparatus, which is why their lives are deemed unworthy of protection. Terri Schiavo not only deserved to enjoy every human right but must have them forced on her, though she was unable in any event to make use of them as a person; the tortured prisoners are able to use—and presumably desperate to be granted—any human right but must be deprived of all. The legitimization of torture and the excessive care for a human life reduced to vegetative state are thus two manifestations of the same grotesque logic.

There is, however, a further phantasmic element that sustains the tolerance for torture—that of being exposed to a potential or invisible threat: It is the invisible (and for that very reason all-powerful and omnipresent) threat of the Enemy that legitimizes the permanent state of emergency of the Established Power. (Fascists invoked the threat of the Jewish conspiracy, Stalinists the threat of the class enemy, and today, of course, we have the “war on terror.”) This invisible threat of the Enemy legitimizes the logic of the preemptive strike. Precisely because the threat is virtual, one can’t wait for its actualization; one must strike in advance, before it’s too late. In other words, the omnipresent invisible threat of “terror” legitimizes the all too visible protective measures of defense (which, of course, pose the only true threat to democracy and human rights). If the classic exercise of power lay in the threat made operative precisely by way of never actualizing itself, by way of remaining a threatening gesture (a stratagem that reached its climax in the cold war, wherein the threat of the mutual nuclear destruction 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 an endless series of strikes against alleged and even merely potential terrorists. The power that presents itself as being always under threat, living in mortal danger, and thus merely defending itself is the most dangerous kind of power, the very model of Nietzschean ressentiment and moralistic hypocrisy—and was it not Nietzsche himself who, more than a century ago, provided avant la lettre 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 serve 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 as 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.*

Slavoj Žižek is a senior researcher in the department of philosophy at the Institute of Sociology, University of Ljubljana.

*Friedrich Nietzsche, Human, All Too Human (1878). In The Portable Nietzsche, ed. and trans. Walter Kaufmann (Penguin, 1954).