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After September 11: Our State of Exception

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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

1.

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.

2.

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.

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Stephen Crowley/The New York Times/Redux
President Bush and Vice President Cheney at the White House, March 2008
And then he answered me in English. And he said he would not speak to me in God’s language. And then I said, “That’s okay. We know who you are.”

They did not quite know, as it happened. The facts that Secretary Rumsfeld had crowed about at the Pentagon as “well established” were not facts at all. Abu Zubaydah was not “a close associate” of Osama Bin Laden, nor was he “number two,” nor even “very close to the number two person in the organization”—nor, as the Department of Justice admitted in court documents in 2009, did he have any role in or advance knowledge of the September 11 attacks, nor was he a member of the organization or “formally” identified with it at all.6 To US officials desperate for information on al-Qaeda six months after the attacks on New York and Washington, he seemed, however, a very rich prize indeed—as Abu Zubaydah seemed to recognize, according to Kiriakou’s recounting of the initial bedside interview at that undisclosed location:

And then he asked me to smother him with a pillow. And I said, “No, no. We have plans for you.”7

The plans even then were being fought over. The interrogation would be led at this initial stage by two experienced interrogators from the FBI, using “traditional methods”: helping to nurse the wounded man back to health, changing his bandages, washing his wounds, building a relationship, respect, rapport, etc. One of these men, the Lebanese-born Ali Soufan, would startle the prisoner by addressing him as Hani, the nickname his mother had used with him.

Soufan has argued strenuously, first as an unnamed source for journalists and now in newspaper articles and congressional testimony and a book in his own name, that all the valuable information that was gained from Abu Zubaydah—including the identity of so-called “dirty bomber” Jose Padilla and the code name of Khalid Sheikh Mohammed—was gained in those initial discussions.8 Traditional interrogation, he and his colleagues contend, was working. Torture was not needed.

Others in the government, particularly in the CIA, did not believe it; they were convinced, as a Justice Department report has it, that “he was not telling all he knew.” How did they come to this conclusion? It is a fascinating question. Unlike the fantasy parable of the Ticking Bomb, in which officials know everything—that the nuclear bomb has been planted, that it will be detonated soon, that the man in custody who denies knowing its location actually knows it, that only torture will make him speak—in the real world it is the vast unknowns we fear, the deserts of ignorance, unbounded by any certain facts.

Donald Rumsfeld famously distinguished between the “known unknowns”—what we know we don’t know, which can be frightening—and the “unknown unknowns”—what we don’t even know we don’t know, which can be terrifying. After September 11, that terror was expressed in a simple calculus of action, well described by the CIA inspector general in 2004:

Lack of knowledge led analysts to speculate about what a detainee “should know,” [versus] information the analyst could objectively demonstrate the detainee did know…. When a detainee did not respond to a question posed to him, the assumption at Headquarters was that the detainee was holding back and knew more; consequently, Headquarters recommended resumption of [enhanced interrogation techniques].9

In an atmosphere of fear and anxiety, it seems the prudent course to assume what the detainee “should know” and proceed accordingly. And make no mistake, the critical decisions laying the basis for the state of exception were made in a state of anxiety and fear. How could they not have been? After September 11, as Richard Clarke put it simply, “we panicked.” Terrorism, downgraded as a threat by the incoming Bush administration, now became the single all-consuming obsession of a government suddenly on a “war footing.”

Every day the President and other senior officials received the “threat matrix,” a document that could be dozens of pages long listing “every threat directed at the United States”10 that had been sucked up during the last twenty-four hours by the vast electronic and human vacuum cleaner of information that was US intelligence: warnings of catastrophic weapons, conventional attacks, planned attacks on allies, plots of every description and level of seriousness. “You simply could not sit where I did,” George Tenet later wrote of the threat matrix, “and be anything other than scared to death about what it portended.”11

One official compared reading the matrix every day—in an example of the ironic “mirroring” one finds everywhere in this story—to “being stuck in a room listening to loud Led Zeppelin music,” which leads to “sensory overload” and makes one “paranoid.” He compared the task of defending the country to playing goalie in a game in which the goalie must stop every shot and in which all the opposing players, and the boundary lines, and the field, are invisible.12

All this bespeaks not only an all-encompassing anxiety about information—about the lack of map rooms displaying the movements of armies, the maddening absence of visible, identifiable threats, the unremitting angst of making what could be life-and-death judgments based on the reading and interpreting of inscrutable signs—but also, I think, guilt over what had been allowed to happen, together with the deep-seated need to banish that guilt, to start again, cleansed and immaculate. Thus “the War on Terror”—a new policy for a new era, during which the guardians of the nation’s security could boast a perfect record: no attacks on American soil. The attacks of September 11 would be banished to a “before time” when the “legalistic” Clinton rules applied, before “the gloves came off.” The successful attack could thus be blamed on the mistaken beliefs of another time, another administration. The apocalyptic portal of September 11 made everything new, wiping out all guilt and blame.

The argument escalated, between the FBI and CIA interrogators at the “black site,” between various factions back in Washington. CIA officers, led by two “contractors” who had been Air Force instructors in the so-called SERE program in the military—a program designed to prepare downed pilots for hostile questioning—prepared an interrogation plan for the detainee, and it was passed to CIA headquarters and discussed in the White House. By mid-May the national security adviser let it be known that the plan could go forward, subject to Justice Department approval. The FBI interrogators, the most experienced on the scene, were withdrawn. In their wake CIA officers began to apply—as President Bush preferred to call them—an “alternative set of procedures.”

We should remember that the contractors hired by the CIA improvised these from a cold war–era program the Air Force had “designed to simulate conditions to which [pilots] might be subject if taken prisoner by enemies”—that is, the Soviets and the Chinese—“that did not abide by the Geneva Conventions.” Which is to say, SERE training, as one former instructor told the Senate Armed Services Committee, from whose report I am quoting, was “based on illegal exploitation…of prisoners over the last fifty years [emphasis added].”13

We see here perhaps the prime example of the improvisation inherent in the state of exception. First, the critical security bureaucracies in the US government—the CIA and the military—derived their “enhanced interrogation techniques” from a cold war–era pilot-training program that had been intentionally designed to reproduce illegal techniques. They then placed before government attorneys the through-the-looking-glass task of proving that those interrogation techniques are perfectly permissible under the tenets of international and domestic law that they were expressly designed to violate.

This history means that a central line of reasoning running through the so-called torture memos is the peculiar notion that because the pilot trainees, who were volunteers and who could, of course, halt the procedures at any time, did not suffer, for example, long-term psychological harm, then detainees subjected to these techniques, as it were, for real, would not suffer any either. An interrogation program deemed absolutely essential to protect the country during a national emergency was thus “reverse-engineered” from a training program for pilots by contract instructors who had never carried out an actual interrogation. However much this might seem to be a fantasy, in fact it is true.

The leaders of the new War on Terror would not be “reading terrorists their Miranda rights.” They would launch their new War on Terror with an unblemished record and with a willingness, a commitment, to do whatever it took. That meant gaining the most vital fuel: information. When it came to the interrogation of Abu Zubaydah, the victor in the struggle between the FBI and its traditional “law enforcement methods” and the CIA and its improvised “alternative set of procedures” was preordained. The judgment would seem to be built on evidence, on the thinness of what the detainee was providing, but in fact was based on conviction. Abu Zubaydah was known to be a high official in al-Qaeda—a “lieutenant of Osama bin Laden,” as Vice President Cheney is still describing him in his recent memoir, In My Time (2011). If he gives up only relatively modest information, mustn’t that very fact mean he is concealing things that are important? The conviction of secret knowledge, set beside the paucity of what is revealed, proves the conclusion of deception. (It is a familiar, if distinctive, chain of reasoning. Mustn’t, after all, the failure of the UN inspectors to find weapons of mass destruction in Iraq be confirmation that Saddam is hiding them?)

Back at the Department of Justice Deputy Assistant Attorney General John Yoo and a young colleague were working furiously on a memorandum that judged whether twelve proposed techniques—including slamming the captive’s head against a wall and suffocating him with water—violated the statutes of the US criminal code and the US government’s international undertakings forbidding torture. Their memos went through several drafts. “Bring the Bad Things Memo,” Yoo e-mailed his young colleague before a White House meeting during that heady spring. “I like your new name for it,” she replied brightly. There is in these exchanges all the breathless excitement of young professionals breaking new legal ground.

Experimentation and improvisation are inherent in the very genes of our state of exception—as Abu Zubaydah seems to realize in recounting the second, or “correction,” phase of his interrogation, which followed his weeks sitting chained to the chair in the cold white room:

Two black wooden boxes were brought into the room outside my cell. One was tall, slightly higher than me and narrow…. I was taken out of my cell and one of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room….
I was then put into the tall black box for what I think was about one and a half to two hours. The box was totally black on the inside as well as the outside…. They put a cloth or cover over the outside of the box to cut out the light and restrict my air supply. It was difficult to breathe. When I was let out of the box I saw that one of the walls of the room had been covered with plywood sheeting. From now on it was against this wall that I was then smashed with the towel around my neck.

Abu Zubaydah suggests that “the plywood was put there” because the “interrogators realized that smashing me against the hard wall would probably quickly result in physical injury.” No doubt he is right: the plywood is the answer to the perennial problem of the torturer: how to inflict sufficient pain without causing injury of the sort that will make further “exploitation” of the detainee difficult or even impossible. But where precisely, between the first time Abu Zubaydah was smashed into the wall and then placed inside the standing black coffin-like box for “close confinement” and then emerged to be “walled” again, did that plywood come from?

I suspect it was the idea of someone back at CIA headquarters, in Langley, Virginia. As CIA officer John Kiriakou reminds us,

Each one of these steps…had to have the approval of the Deputy Director for Operations. So before you laid a hand on him, you had to send in the cable saying, “He’s uncooperative. Request permission to do X.” And that permission would come…. The cable traffic back and forth was extremely specific….

Beyond the hour-by-hour approval of particular techniques issuing out of headquarters came an assiduous effort to brief “NSC policy staff and senior Administration officials,” for, as the CIA inspector general put it, “the Agency specifically wanted to ensure that these officials and the [Congressional Oversight] Committees continued to be aware of and approve CIA’s actions.”14 One detects here a further echo of the 1970s and the scandals after the revelations of agency assassinations, coups, and other misdeeds before the Church and Pike committees: CIA leaders and officers were determined that this time, however much national attitudes on these matters might change—after the emergency had passed—they could never be accused of “rogue” behavior. This time, high officials couldn’t claim they didn’t know; instead of “nothing on paper,” this time CIA officers would insist on briefings, meetings, records, memos, documents—explicit approval. In so doing they ensured that responsibility was spread very high and very wide indeed.

Again, Abu Zubaydah:

After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply…. The wound on my leg began to open and started to bleed….
I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

This is the famous waterboarding, a time-honored technique deployed by the priestly interrogators of the Spanish Inquisition, by French paratroopers during the Algerian War, by the Argentines during their “dirty war,” by the Khmer Rouge and the Salvadorans during their civil wars. Techniques vary but the principle remains the same: drown the prisoner, provoking suffocation and panic, then interrupt the drowning in time to save his life. That American interrogators were waterboarding prisoners first appeared in the press, to my knowledge, in May 2004, in a report in The New York Times. This of course is another side of “public secrecy”: the two narratives—what was done and what we know—crossed very early on.

Of the eleven “enhanced interrogation techniques” deemed legal by the Department of Justice, ten, according to John Yoo, “did not even come close to the [legal] standard [of torture],” but “waterboarding did.” In a rather striking admission to Department of Justice investigators that has received too little attention, Yoo confessed that “I had actually thought that we prohibited waterboarding. I didn’t recollect that we had actually said that you could do it.” He went on:

The waterboarding as it’s described in that memo is very different than the waterboarding that was described in the press. And so when I read the description in the press of what waterboarding is, I was like, oh, well, obviously that would be prohibited by the statute.15

It should be said, of course, that the International Committee of the Red Cross, legally charged with investigating and judging the treatment of prisoners, had no problem whatever declaring that this treatment “amounted to torture and/or cruel, inhuman, or degrading treatment.” But Yoo’s observation underlines again that the differences between what is prescribed in the legal and policy documents—in which Yoo memorably describes waterboarding as a “controlled acute episode” short of torture—and what actually happens at the black sites is often dramatic. In waterboarding Abu Zubaydah, the interrogators used more water and performed the procedure much more frequently—eighty-three times, in this case—than prescribed in the documents, part of a general “drifting downward” into greater cruelty that we see throughout the various plotlines of this story.

It seems a general rule of what we might call the early state of exception that those officials—at the White House, the CIA, the Pentagon, and the Justice Department—who could point to the desert of knowledge, who could dwell on and profit from the fear of that dark unknown, were victorious, and indeed nothing more dramatically embodies the style of the exception: Assume the worst. Act preemptively, aggressively. Don’t hesitate. When in doubt, act. If there is a risk, the possible consequences are so grave that you must not let worries over evidence slow you down.

This kind of thinking reached a kind of apotheosis in Vice President Cheney’s so-called “one-percent doctrine,” which Ron Suskind summarized as follows: “If there was even a one percent chance of terrorists getting a weapon of mass destruction…the United States must now act as if it was a certainty.”16 This remarkable attitude toward risk—that only lack of action, and not mistaken action, posed dangers to the country—had peculiar and contradictory effects when embodied in the vast worldwide detention regime spawned by the state of exception: the five thousand arrested and detained by the Immigration and Naturalization Service in the United States; the tens of thousands detained in Abu Ghraib and Bagram and other prisons in Iraq and Afghanistan; the hundreds detained in Guantánamo Bay, Cuba; the scores detained in the “black sites.” This vast system, which stretched around the world and at one time held nearly one hundred thousand prisoners, was intended to extract the vital intelligence that would supply the “front line” in the War on Terror.

But the sweeping arrests and indefinite detention—the failure to make discriminations of risk (which would have meant a willingness to get it wrong) in favor of wholesale, blanket judgments based on pervasive fear—had the perverse effect of crippling the intelligence-gathering system itself. That system was flooded with detainees who knew nothing “actionable,” or even relevant—and who could not be released, either, because, as in Abu Ghraib, the officers who were responsible for detaining them objected or because, as Colonel Lawrence Wilkerson says of the Guantánamo detainees, “it was politically impossible to release them.” Wilkerson, who served as chief of staff to Secretary of State Colin Powell, notes that if those detainees who should never have been imprisoned were released, “the detention efforts at Guantánamo would be revealed as the incredibly confused operation that they were.”17

The injustice of the system, of course, was pervasive, and this was increasingly recognized around the world and had its own grave political effects in what was, after all, a political war—a war in which al-Qaeda’s primary goal was to recruit young Muslims to its cause. But it is important to recognize that it was failing on its own terms. A system meant to be gathering the most vital and precious resource to fight the existential dangers of the War on Terror in fact was debilitating itself.

Though his moment of secret fame is long past, Abu Zubaydah is still with us. After three and a half years in the black sites, he was moved in 2006 to Guantánamo, where he is now in his ninth year of imprisonment. Thinking of him there, it is difficult to embrace fully the presiding philosophy of the Obama administration on these matters: that when it comes to torture we must “look forward,” not back. Impossible, thinking of Abu Zubaydah and the questions he embodies, not to think as well of his American partners in these scenes a half-dozen years ago. Many of course have moved on, to private law firms, to corporate security jobs, to university faculties. But the story is not over. The documents are full of the drama of the interrogators and the officials of the CIA demanding that they be granted, if not advance immunity for what they were about to do—a so-called “letter of delination”-—then at least a “golden shield” that would protect them from any future attempt at prosecution. They received one, indeed a series of them, in the so-called “torture memos” produced by the Justice Department and, later, in the Military Commissions Act passed by Congress in 2006.

As we look back today at these ghostly figures, at the policymakers sitting in their offices who ordered these techniques, and the lawyers who deemed them legal, and the interrogators who practiced them on men chained naked in cold sunless rooms, we can have the sense, haunting as it is, that they are all looking forward at us, as we stand here today judging what they did. If we know anything, it is that they knew this moment would come. They were determined to prepare for it, and in a sense they succeeded brilliantly. The legal memos, however grotesque in their reasoning and however widely denounced, have in effect held sway, and imposed a painful unremitting moral limbo on all of us.

Waterboarding, prosecuted within the United States as recently as 1983—and reaffirmed, explicitly, to be illegal by the present attorney general in his confirmation hearings—now amounts, in these exhaustively documented cases, to no more than the “controlled acute episode” of John Yoo’s description. The former vice-president can speak proudly in his memoirs of his approval of these techniques, asserting, in direct contradiction to findings of the International Committee of the Red Cross, that “they complied with the law, including international treaty obligations such as the United Nations Convention Against Torture.” The current president is on record asserting that waterboarding is illegal—even as his predecessor proudly recounts in his own memoirs that when asked for approval to waterboard Khalid Sheikh Mohammed he replied without hesitation, “Damn right!”

Americans, believing themselves to stand proudly for the rule of law and human rights, have become for the rest of the world a symbol of something quite opposite: a society in which lawbreaking, approved by its highest elected officials, goes unpunished. Thus President Obama’s exhortation that the country look forward and not back takes on a different coloring: the country has entered a twilight world when it comes to the law and is unlikely soon to emerge from it.

At the same time, in the Middle East itself, where torture had underpinned the power of every national security state, the most notorious images of the state of exception—the obscenely twisted naked figures at Abu Ghraib, the kneeling hooded prisoners in their orange jumpsuits at Guantánamo—provoked a debate about torture and human rights that had heretofore been impossible. Egyptians, forbidden to talk about Egyptian torture, could freely discuss, analyze, and condemn American torture, and thereby initiate a discussion of human rights and dignity that was a motivating element in the early upheavals of the Arab Spring. As Shadi Mokhtari writes:

Because the torture and abuse depicted was so widely seen as directed towards the Arab or Muslim man, many felt a profound sense of personal violation. As they grappled to formulate a response, they often found themselves invoking human rights…. Instead of viewing human rights as a Western imposition, increasingly it became a language that Arab populations embraced…. It did not take long however for the focus to turn inward to the Arab world’s own “Guantánamos,” “Abu Ghraibs,” and widespread practice of torture. Activists began exploiting limited openings to draw compelling analogies to the repression pervading their own societies.18

This raises a question for Americans: Are we still waiting to have that debate in the United States—or is it already over? The story of torture is widely known, voluminously documented. It is part of our present, not our past. When Umar Farouk Abdulmutallab, the so-called “Christmas Day Bomber,” was apprehended after failing to detonate his “underwear bomb” over Detroit, a number of prominent politicians, both Republican and Democratic, demanded he be sent to Guantánamo and subjected to “enhanced interrogation techniques.” That Obama officials handed him over to the FBI provoked outrage and warnings about the grave danger such a decision represented for the country. “Eleven months after the president had shut down the enhanced interrogation program and revealed the techniques in the program publicly,” former Vice President Cheney writes in his memoir, “the replacement [for the interrogation program] did not exist. Abdulmutallab was read a Miranda warning.”

The accuracy of this—in fact, Abdulmutallab seems to have cooperated with the FBI interrogators—is less important than what it says about the centrality of “enhanced interrogation techniques” as a political touchstone in the era of the state of exception. Torture shows that officials are willing to do anything to protect the country. Reluctance to use torture shows weakness, an ambivalence in the determination to protect the country no matter what the cost. Reluctance to use torture shows a reversion to the “law enforcement model,” which, as we know, is now held to be responsible for the success of the September 11 attacks in the first place.

As long as there is no successful attack on American soil an unstable equilibrium persists—a gray world different but recognizable. In the wake of the next attack, however, the subtle changes all around us, the ways the state of exception endures, will leap into vivid color. And for all the talk of the “strategic defeat” of al-Qaeda, that next attack is almost certain to come—indeed, the very weakening of al-Qaeda makes such a success more likely. The organization is no longer strong enough to insist that America, the showcase for its most dramatic efforts, is suited only for a “spectacular,” a grand mass-casualty event on the scale of September 11. Now any attack, even a “lone wolf” car bombing, will serve, and we see this in the pattern of recent attempts:

In the post 9/11 world, we had an average of about four plots targeting US soil, or emanating on US soil, a year. In 2008–2009, that jumps to nine and then ten. In 2011, we are already on a pace to pass that.

Thus John Miller, a high official of the Office of the Director of National Intelligence and a former television reporter who interviewed both Osama bin Laden and Ayman al-Zawahiri. Miller goes on:

Something has happened, a better maturation of ideology, a better way to get the message out, that has caused those plots to be coming at us literally at a rate or a pace of almost one a month. And when you deal in that kind of volume, you have a special challenge. Number one, we are operating at nearly 100 percent in interdicting all of them and shutting them down. But the odds of being able to maintain that batting average, as the numbers go up, those [odds] go down.19

What is this “better way of getting the message out”? One of the most damaging failures of the early War on Terror was the willingness of the Bush administration to act in a way that seemed to embody the caricature that bin Laden and al-Qaeda had made of the United States: a muscle-bound, arrogant, crusading, hegemonic superpower intent on repressing and abusing and humiliating Muslims. The naked obscenities from Abu Ghraib, the images of shackled, hooded Muslims in their orange jumpsuits at Guantánamo, were immense victories for al-Qaeda in a war whose foremost strategic goal was the recruitment of young Muslims to the cause of extremist, anti-American Islamic fundamentalism. It is this “battle of the story” that Dick Cheney, for example, still fails utterly to grasp. “I don’t have much sympathy for the view that we should find an alternative to Guantánamo…,” he tells us in his memoir, “simply because we are worried about how we are perceived abroad.”

The president who followed him has shown—most notably in his Cairo speech to the Muslim world—that he has a deeper understanding of the politics of this conflict; but his failure to close Guantánamo, after vowing on his second day in office to do so within the year, shows how deeply the state of exception has embedded itself in our politics. No one, Republican or Democrat, wants to be accused of “coddling terrorists.” To this President Obama, in a typically eager capitulation to reality, has acceded. It is a compromise with the state of exception for which, in the political whirlwind certain to follow hard on another successful attack, he is unlikely to be granted much credit. Meanwhile the one element that, since the early Roman dictatorships, all states of exception have shared—that they are temporary, that they end—seems lacking in ours. Ten years later, what was the exceptional has become the normal. The improvisations of panic are the reality of our daily lives.

  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. 

  6. 6

    In documents filed in US District Court in Washington in September 2009, the Justice Department conceded that the government was no longer contending that Zubaydah

    was a “member” of al-Qaeda in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaeda may have considered necessary for inclusion in al-Qaeda…. Rather, [the government’s] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was “part of” hostile forces and ‘substantially supported’ those forces.
    Earlier, at his Combatant Status Review Tribunal at Guantánamo, Zubaydah noted that his interrogators had “told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter.” See, for example, Jason Leopold, “Government Recants Major Terror Claims on ‘High Value’ Detainee Abu Zubaydah,” TruthOut, March 30, 2010, and Andy Worthington, “Abu Zubaydah: Tortured for Nothing,” Commentaries: The Future of Freedom Foundation, April 5, 2010. See also Barton Gellman, “The Shadow War, in a Surprising New Light, The Washington Post, June 20, 2006. 

  7. 7

    See “CIA–Abu Zubaydah. Interview with John Kiriakou,” pp. 8–9,” an unedited, rough, and undated transcript of a video interview conducted by Brian Ross of ABC News, apparently in December 2007, and available at abcnews.go.com. 

  8. 8

    See Ali Soufan, “My Tortured Decision,” The New York Times, April 22, 2009. See also Ali Soufan and David Freeman, The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda (Norton, 2011). 

  9. 9

    Inspector General, Central Intelligence Agency, Special Review: Counterterrorism and Detention Activities (September 2001–October 2003), May 7, 2004, p. 83. 

  10. 10

    Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (Norton, 2007), p. 71. 

  11. 11

    Quoted in Goldsmith, The Terror Presidency, p. 72. 

  12. 12

    Goldsmith, The Terror Presidency, pp. 72–73. 

  13. 13

    See “Executive Summary and Conclusions,” Inquiry into the Treatment of Detainees in US Custody, Senate Armed Services Committee, December 2008, p. xiii; quoted in my Stripping Bare the Body: Politics Violence War (Nation Books, 2009), p. 526. 

  14. 14

    Special Review: Counterterrorism and Detention Activities (September 2001–October 2003), p. 23. 

  15. 15

    Office of Professional Responsibility, Department of Justice, Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation Techniques” on Suspected Terrorists, July 29, 2009, pp. 53–54. 

  16. 16

    See Ron Suskind, The One Percent Doctrine: Deep Inside America’s Pursuit of Its Enemies Since 9/11 (Simon and Schuster: 2006), p. 62. 

  17. 17

    See the Declaration of Colonel Lawrence B. Wilkerson in Adel Hassan Hamad v. George W. Bush, Donald Rumsfeld, Jay Hood, and Brice Gyurisko, US District Court for the District of Columbia, CV 05-1009 JDB, March 24, 2010. 

  18. 18

    See Shadi Mokhtari, “George Bush and the Turn to Human Rights in the Arab World,” OpenDemocracy.net, February 25, 2011. 

  19. 19

    See Piers Morgan Tonight, CNN, September 6, 2011. 

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