Guantánamo Bay and the Annihilation of the Exception

Fleur Johns ¹

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Abstract

This article takes issue with prevailing characterizations of Guantánamo Bay as an instance of international law and US law’s breakdown or withdrawal: a surmounting of the rule by the exception. Contentions along these lines circulating in international legal literature and, in a divergent sense, in the work of Italian philosopher Giorgio Agamben, are examined in a critical light. Against these accounts, this article argues that Guantánamo Bay is, to a hyperbolic degree, a work of legal representation and classification: an instance of the norm struggling to overtake the exception. Moreover, this article argues, strategies of detention, interrogation and control being utilized at Guantánamo Bay are being sustained in part through domestication, evisceration and avoidance of experiences of deciding on the exception. In short, this article maintains, experiences of the exception appear to be in retreat at Guantánamo Bay, rather than in ascendancy. The author develops this argument by reference to public records and official characterizations of decision-making at Guantánamo Bay. By way of a critical response, the author then presents a heterodox reading of Carl Schmitt’s theorization of the exception, whereby the experience of exceptional decisionism is read away from Schmitt’s preoccupation with the state. It is to such a renewed, diffuse sense of the exception within law, rather than to a vehement insistence upon the norm, that this article suggests turning in raising doubts about the ongoing work of the US Government at Guantánamo Bay.

1.  Lecture. University of Sydney Faculty of Law, Sydney, Australia.

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