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After September 11: Our State of Exception

Doug Mills/The New York Times/Redux
Vice President Dick Cheney cutting a cake, with Secretary of Defense Donald Rumsfeld and Undersecretary of the Army Les Brown, in honor of the Army’s 228th anniversary, Washington, D.C., June 13, 2003
We are in a fight for our principles, and our first responsibility is to live by them.
—George W. Bush, September 20, 2001


We are living in the State of Exception. We don’t know when it will end, as we don’t know when the War on Terror will end. But we all know when it began. We can no longer quite “remember” that moment, for the images have long since been refitted into a present-day fable of innocence and apocalypse: the perfect blue of that late summer sky stained by acrid black smoke. The jetliner appearing, tilting, then disappearing into the skin of the second tower, to emerge on the other side as a great eruption of red and yellow flame. The showers of debris, the falling bodies, and then that great blossoming flower of white dust, roiling and churning upward, enveloping and consuming the mighty skyscraper as it collapses into the whirlwind.

To Americans, those terrible moments stand as a brightly lit portal through which we were all compelled to step, together, into a different world. Since that day ten years ago we have lived in a subtly different country, and though we have grown accustomed to these changes and think little of them now, certain words still appear often enough in the news—Guantánamo, indefinite detention, torture—to remind us that ours remains a strange America. The contours of this strangeness are not unknown in our history—the country has lived through broadly similar periods, at least half a dozen or so, depending on how you count; but we have no proper name for them. State of siege? Martial law? State of emergency? None of these expressions, familiar as they may be to other peoples, falls naturally from American lips.

What are we to call this subtly altered America? Clinton Rossiter, the great American scholar of “crisis government,” writing in the shadow of World War II, called such times “constitutional dictatorship.”1 Others, more recently, have spoken of a “9/11 Constitution” or an “Emergency Constitution.” Vivid terms all; and yet perhaps too narrowly drawn, placing as they do the definitional weight entirely on law when this state of ours seems to have as much, or more, to do with politics—with how we live now and who we are as a polity. This is in part why I prefer “the state of exception,” an umbrella term that gathers beneath it those emergency categories while emphasizing that this state has as its defining characteristic that it transcends the borders of the strictly legal—that it occupies, in the words of the philosopher Giorgio Agamben, “a position at the limit between politics and law…an ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political.”2

Call it, then, the state of exception: these years during which, in the name of security, some of our accustomed rights and freedoms are circumscribed or set aside, the years during which we live in a different time. This different time of ours has now extended ten years—the longest by far in American history—with little sense of an ending. Indeed, the very endlessness of this state of exception—a quality emphasized even as it was imposed—and the broad acceptance of that endlessness, the state of exception’s increasing normalization, are among its distinguishing marks.

For the overwhelming majority of Americans the changes have come to seem subtle, certainly when set beside how daily life was altered during World War II or World War I, not to mention during the Civil War. Officially sanctioned torture, or enhanced interrogation, however dramatic a departure it may be from our history, happens not to Americans but to others, as do extraordinary rendition and indefinite detention; the particular burdens of our exception seem mostly to be borne by someone else—by someone other. It is possible for most to live their lives without taking note of these practices at all except as phrases in the news—until, every once in a while, like a blind man who lives, all unknowingly, in a very large cage, one or another of us stumbles into the bars.

Whoever takes the time to peer closely at the space enclosed within those bars can see that our country has been altered in fundamental ways. When President Barack Obama in his elegant address accepting the Nobel Peace Prize declares to the world that he has “prohibited torture,” we should pause in our pride to notice that torture violates international and domestic law and that the notion that our new president has the power to prohibit it follows insidiously from the pretense that his predecessor had the power to order it—that during the state of exception, not only because of what President George W. Bush decided to do but also because of what President Obama is every day deciding not to do (not to “look back” but “look forward”), torture in America has metamorphosed. Before the War on Terror, official torture was illegal and anathema; today it is a policy choice.


I woke up, naked, strapped to a bed, in a very white room. The room measured approximately 4m x 4m. The room had three solid walls, with the fourth wall consisting of metal bars separating it from a larger room. I am not sure how long I remained in the bed. After some time, I think it was several days, but can’t remember exactly, I was transferred to a chair where I was kept, shackled by [the] hands and feet for what I think was the next 2 to 3 weeks. During this time I developed blisters on the underside of my legs due to the constant sitting….
I was given no solid food during the first two or three weeks, while sitting on the chair. I was only given Ensure and water to drink. At first the Ensure made me vomit, but this became less with time. The cell and room were air-conditioned and were very cold. Very loud, shouting type music was constantly playing. It kept repeating about every fifteen minutes twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise….
During this first two to three week period I was questioned for about one to two hours each day. American interrogators would come to the room and speak to me through the bars of the cell. During the questioning the music was switched off, but was then put back on again afterwards. I could not sleep at all for the first two to three weeks. If I started to fall asleep one of the guards would come and spray water in my face.3

By now, sometime in the summer of 2002, as he sits woozy and drooling, chained naked to the chair, and though he doesn’t know it, Zayn al-Abidin Muhammad Husayn is a famous man, his knowledge and status debated in the world’s press and argued over in the White House. When he was captured on March 28, 2002, in a spectacular raid in Faisalabad, Pakistan, during which he leapt from a building’s rooftop and was shot three times, the man we now know as Abu Zubaydah, of Saudi birth and Palestinian nationality, had just turned thirty-one. His capture was an event of great moment, a trophy in the War on Terror. “The other day, we hauled in a guy named Abu Zubaydah,” President Bush proclaimed at a Republican fundraiser in Greenwich.

He’s one of the top operatives plotting and planning death and destruction on the United States. He’s not plotting and planning anymore. He’s where he belongs.

Abu Zubaydah, as Secretary of Defense Donald Rumsfeld told the world from his Pentagon lectern two days after his capture, was “a close associate of [Osama Bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”4

It is an intriguing phrase, “well established”: What does it take to make a fact a fact? What we actually know about Abu Zubaydah—and, even more, what we know he knows—would become a matter of intense debate. At this point we know he has bullet wounds in the stomach, thigh, groin, loses huge amounts of blood, falls into a coma. On the other side of the world, in Baltimore, a trauma surgeon is awakened by an urgent call from the CIA director, rushed to a private jet, and flown to Pakistan where he manages, just barely, to save the prisoner’s life. Abu Zubaydah, bleeding, still unconscious, will be carried off to a famously “undisclosed location” and his whereabouts will remain a closely guarded secret, not least to him, even as he sits, several months later, chained immobile in his white room.

Once again, we know a bit more than he does: the white room is likely on a military base in Thailand, but in any event at one of the so-called “black sites” that the CIA improvised hurriedly in the days after September 11, secret prisons in Pakistan, Afghanistan, Romania, Morocco, Poland, Lithuania, and perhaps elsewhere to hold and interrogate prisoners, pursuant to President Bush’s secret order, issued six days after the attacks, which gave this task to the CIA, an agency that had had nothing whatever to do with detention or interrogation for two decades or more.

So the critically wounded Abu Zubaydah is “disappeared” into secrecy; but in fact all that is secret is his location. Abu Zubaydah’s capture and his “disappearance” quickly became highly public victories in the War on Terror. That he was now in American hands, and “where he belongs”-—being interrogated at an “undisclosed location”: this was known, discussed, debated, gloated over. This peculiar fiction of “public secrecy” allows the government to withhold not mainly knowledge from the public—though narrow and vital bits of information are withheld—but responsibility and liability from itself. Not officially acknowledging the situation of the man—and, eventually, of scores more such prisoners—the United States will reject all claims that it has any obligation to account for them or to answer for their treatment, as other countries have done in the case of their own “disappeared.” Without legal status or even government confirmation that they are alive and in custody, such prisoners become the objects, as Agamben writes, of “a detention that is indefinite not only in the temporal sense but in its very nature….”5 That is, we have reached, when it comes to detainees, the opposite end of the spectrum from the presiding liberal idea of a government inherently limited in its powers.

A few days later Abu Zubaydah wakes from his coma to find at his bedside in this unfamiliar location in an unknown country a man he doesn’t know, who asks him his name. Abu Zubaydah shakes his head: he has heard the American accent. “And I asked him again in Arabic,” remembers John Kiriakou of the CIA.

  1. 1

    See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press, 1948; Transaction, 2002). 

  2. 2

    See Giorgio Agamben, State of Exception (University of Chicago Press, 2005), p. 1. The second phrase Agamben quotes from François Saint-Bonnet, L’État d’exception (Presses Universitaires de France, 2001). 

  3. 3

    ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007, pp. 28–29. 

  4. 4

    See “DoD News Briefing—With Secretary Rumsfeld and General Myers,” April 1, 2002. Remarks by the President, Connecticut Republican Committee Lunches, April 9, 2002. 

  5. 5

    See State of Exception, pp. 3–4. 

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