The document summarizes Giorgio Agamben's analysis of Guantanamo Bay detainees as examples of "bare life". It discusses how the detainees have been stripped of their human and civil rights, rendering them killable but unsacrificeable. This places them in a state of exception where sovereign power operates outside of legal norms. The document also notes the presence of refugees at Guantanamo who are in a similarly precarious legal position, blurring the lines between innocent and guilty. It analyzes how the camp spatializes and makes permanent the state of exception, creating ambiguity and indistinction between legal categories and rights.
1. Michael Guzy
The key “protagonist” of Giorgio Agamben’s Homo Sacer is “bare life” or the sacred
man “who may be killed yet not sacrificed.”1 There is a necessary tension in that definition that
reveals itself in the rest of his work; the sacred man implies the importance of that man, yet
something must happen to take away the importance of that man’s death. “Bare life” is the
condition of the Guantanamo Bay detainee, and thus this tension that goes into this definition
extends to them. They are stripped of their human and civil rights by virtue of a classification
that was laid onto them and put into a space in which that fact is attested to via the sovereign.
This actor is also a figure of immense curiosity to Agamben from the fact that the “sovereign is,
at the same time, outside and inside the judicial order”2 by stating who is and is not outside the
“state of exception”3 that state where the condition of bare life can be fully seen and remarked
upon. Thus, the state of exception and bare life are necessarily intertwined. But this prompts the
question as to how such a seemingly undemocratic set of relations could occur in the United
States, a country which is ostensibly a democracy. Guantanamo Bay is a prime example to see
how the sovereign and bare life interact in a visceral way, its isolation from the rest of the world
makes it easy to see the location in a seeming vacuum, which is the wrong conclusion to make.
In fact, the goal of this paper is to analyze the historic and legal conditions which allowed
Guantanamo, and thus bare life and the state of exception, to exist, concluding that the
indistinctness and contradictions pulling on such definitions creates an indistinctness that brings
about such undemocratic manifestations of power.
It is first necessary to delve into more about how the Guantanamo Bay detainees are
physically denoted as bare life. The key term many might find useful in describing bare life is
that it renders individuals superfluous. But using that term to convey Guantanamo Bay detainees
2. looks over the aspect that the individuals are sacred when in bare life. The detainees are
technically important in of themselves as providers of potential information on terrorist
activities, or so the government states, but this simply makes them important individuals, not
important as individuals. This relationship is attested to with how the detainees are shaved and
dressed to become as similar looking as possible to one another yet separated out in individual
cages. Here again we see the contradicting dalliance within bare life play itself out. There is
also a consistent master/subject power dynamic between the detainees and the guards; the
detainees are forced to sit and appear subservient at all times. There is a performativity
embedded into this relationship that creates meaning, a reason for the “community” established
at Guantanamo to exist and thus justify “certain practices of subjugation and domination.”4 The
performativity of the actions reinforces to the guards that they are the “good guys” and that the
detainees are the “bad guys,” and, most disturbingly, tries to make the detainees internalize
themselves as a “bad guy” or, at the very least, make them admit their guilt despite that not being
assured.
However, this explanation is complicated through the presence of another group on the
camp, refugees. Not just aliens or migrants, but literal refugees under protection through various
international and state statutes. Fleeing from violence in Haiti and Cuba in the 1980’s and
1990’s, many potential refugees got stopped and screened by coast guard in international waters
and were either sent back or stationed at Guantanamo for other countries to take them in. The
few still detained Guantanamo are those who passed “the credible fear test and are then
determined to be refugees.”5 This fact presents multiple problems as these individuals stationed
have no guilt affixed to them, in fact, they should be considered the exact opposite of guilty by
the United States through the fact that they are officially refugees. Despite this, they perhaps
3. have fewer rights than the “enemy combatants” stationed at Guantanamo, as we have no
information about how they are treated other than that “their movement is…severely restricted
and, given their fear of return to their home country (the one place that they could be transported
outside of Guantinamo), they have no meaningful opportunity to leave.”6 Any analysis of how
they become manifested as bare life has to then base itself off of those few facts. This creates a
confusing mixture of both the essentially innocent and the presumed guilty within the complex.
This idea makes Guantanamo disturbingly similar to Arendt’s concentration camp where “hatred
is diverted from those who are guilty…the distinguishing line between persecutor and
persecuted, between the murderer and his victim, are blurred.”7 Any call of innocence then,
becomes blurred in the conditions of the camp, innocence does not matter at Guantanamo, and it
never did. It is important to note that the refugees were there before the enemy combatants, and
nobody cared even then, they were always considered guilty of being immigrants before the
presumed guilty even arrived.
The actual space of Guantanamo as a camp is also important for the foundation of the
sovereign exception and thus the ordering of bare life. To Agamben, the state of exception is the
“principle of every juridical localization, since only the state of exception opens the space in
which the determination of a certain juridical order and a particular territory becomes possible.”8
It is through the negation of territory in which the actual ordering of territory occurs in a juridical
sense, the repetition of this reinforces the power of the sovereign much in the same way as
performativity does, as it allows the sovereign power to create a meaning for itself. The key
difficulty of this is that the actual state of exception “is essentially unlocalizable.”9 Despite this,
the camp is our attempt to make the unlocalizable a fixed and permanent location.10 The
localization and ordering inherent in the camp and with the sovereign exception then “at its
4. center, contains a fundamental ambiguity, an unlocalizable zone of indistinction.”11 Guantanamo
as we have already seen plays into this indistinction well, the relationship between the guilty and
the innocent, the absurdity of the procedures made by the authorities in regards to the prisoners,
the idea behind bare life itself, and the paradox inscribed in the power of the sovereign all are
examples of this makeup. The history of Guantanamo also plays into this definition; it is an
intangible interaction between the old and the new. Guantanamo itself was established via a
unilateral and asymmetric treaty between the United States and Cuba, which harkens the entire
camp as a reestablishment of old colonial mores regarding certain places “hubs of administrative
activity” yet “outside the law and constitutional arrangements of the colonizer.”12 However, the
inclusion of human rights in the 20th century makes Guantanamo “new” in the sense that it
flagrantly violates such rights, it is through this strange lens that we have to examine what
“outside the law and constitutional arrangements” really means as it pertains to sovereign power
in the United States.
Most western states have clauses in their constitutions which allow them to suspend
certain rights in times of emergency or war, such as the “state of exception” in Germany based
through article 48 of the Weimer Constitution.13 These clauses as, Agamben shows, can be
easily exploited to create dictatorships; he makes a point to show that Germany “was under a
regime of presidential dictatorship for three years”14 before Hitler took over. Democracy was
already disintegrating before-hand from article 48 being called to imprison “thousands of
communist militants and to set up special tribunals authorized to pronounce capital sentences.”15
This makes us aware of the strange unities between democracies and dictatorships within the
sovereign’s “emergency power.”
5. The history of the state of exception in the United States is slightly different; there is no
explicit constitutional granting of the sovereign power of exception onto the president. A clause
in Article II of the constitution however has continually been evoked and has allowed the
president to assume broad powers in times of war and as such “over the course of the 20th
century the metaphor of war has becomes an integral part of the presidential political
vocabulary.”16 President Bush’s proclamations after September 11th entail “a direct reference to
the state of exception… in which the emergency becomes the rule, and the very distinction
between war and peace becomes impossible.”17 However, putting the blame on only the
president for this situation masks the role of Congress, congressional legislation after 9/11 such
as the AUMF essentially delegated the president sovereign power and “has been read as both a
declaration of war and a declaration of emergency.”18 The explicit broadening of both domestic
and foreign powers by Congress is important, but creates another complexity as to whether the
state of exception ever was in sovereign hands in the first place. This “confusion” clouds yet
another legal nuance, the deployment of the “force of law” which is what Agamben states is the
“specific contribution of the state of exception.”19
The “force of law” is those “decrees that the executive power can be authorized to issue
in some situations, particularly in the state of exception.”20 Any “confusion” which derives from
the confluence of legislative and executive functions is less important than the “separation of
‘force of law’ from the law”21 which comes from emergency situations. It allows either formal
governments or revolutionary organizations to act without formal law as if there was a law in
place. The fact that governments have been evoking “emergency powers” so much as to render
any distinction between the two intangible shows how integral the state of exception has been in
the ordering of our current political systems. From this, Guantanamo is not merely a fluke
6. occurrence but an outcropping of a wider political trajectory which allows “Nazism and facism-
which transformed the decision on bare life into the supreme political principle…remain
stubbornly with us.”22 This again attests to the surprising closeness between the two and
democracy.
The final aspect of this discussion is perhaps the broadest one, but one which closes any
gaps as to why Guantanamo happened and is continuing to happen. This aspect is rooted in
ancient conceptions of man which have been dissolved and have resulted in racialized and
ethnicized presumptions around individuals being of inherent importance in any calculus
regarding who to make bare life. Ancient Greece defined two classes of people, the bios, or
those involved in the political system, and the zoe, those humans on the outside of that
arrangement; bios was a privilege only for the elite. The inclusion of zoe in the discussion of
rights which sets modernity apart from ancient Greece created a process known to both Foucault
and Agamben as “bio-politics,”23 or the placing of biological life itself at the center of political
discussion. A political discussion which in itself became diluted into simply “voting” in
modernity, not actual debate and discussion. This process is in itself not solely defined by
sovereign power, it is created by the media, experts, and the population of a country itself. Any
notion of difference can be exploited to horrifying effect through this lens, genocide, forced
famines, laws used against minorities, women, and the lower class, and finally the detainment of
“enemy combatants” and refugees at Guantanamo.
The camp guard at Guantanamo was not created by himself; the psychologist listing off
torture techniques to use on detainees also was not in a vacuum. It is why we as a population
ultimately don’t care about the refugees or the detainees; we are subject and complicit of the
same performative gestures as the guard. It might be a subliminal process, but every time
7. President Bush told us that the detainees were the “worst of the worst” that indicated to us not
only that they were bad, but bad people among a population of already bad people. Their “worst
of the worst” is worse than our own, so much so that we can torture them. Our racialized anti-
Muslim biases already lead us to assume such things, and thus the emergency powers are
justified, Guantanamo is justified, our immigration policy is justified, torture is justified, all
because we ultimately do not care about people that might be different than us. We don’t care if
democracy is forgotten as long as it is not us; this is why such powers always have the risk of
expanding.
In conclusion, Guantanamo Bay is an example of a constellation of various historical and
legal precedents which allow the detainees to be locked up and occasionally tortured without any
juridical procedure. There is an absurdity embedded with the way the detainees were hauled off
into either torture or into slightly menacing meetings regarding administrative and legal minutiae
in between long bouts of nothing. Relatively few detainees have actually died at Guantanamo,
but they always had been classified as killable, and no one would have cared either way, which is
the definition of bare life. The considerable procedural process implicit in the way Guantanamo
is run along with the confusion between constitutional and legal powers shapes according the
contradictions implicit in state of exception, or the force of law without the law. That blurriness
along with the biases inherent in the population allows it not to be questioned, along with the
broadened executive powers given when emergency powers are given which coincide with both
the other aspects. The granting of rights to all, though good in theory, collided with the biases of
our population and so rights are going to be consistently in a state of limbo and uncertainty
according the bio-political ideas of the time. Guantanamo is a symptom of a wider process in the
8. structure of modern politics in itself, the exception thus is the rule, and Guantanamo is an
exceptional example of that very rule.
9. End Notes
1 Agamben, Giorgio, 8. Homo Sacer (Stanford: Stanford University Press, 1998)
2 Agamben, 15, Sacer
3 Agamben, 15, Sacer
4 Zebadúa-Yañez, Verónica, 4, Killing as a performance: Violence and the Shaping of
Community (Sexuality and Politics in the Americas, 2005)
5 Farber, Sonia, 995-996 Forgotten at Guantinamo: The Boumediene Decision and Its
Implications for Refugees at the Base Under the Obama Administration (California Law Review,
2010)
6 Farber, 1010
7 Hannah Arendt, 448, The Origins of Totalitarianism, (New York: Harcourt, Brace and Co,
1951)
8 Agamben, 19, Sacer
9 Agamben, 19, Sacer
10 Agamben, 20, Sacer
11 Agamben, 19, Sacer
12 Hussain, Nasser, 737. Beyond Norm and Exception: Guantanamo(Critical Inquiry: University
of Chicago Press, 2007)
13 Agamben, Giorgio, 14. State of Exception ( Chicago: University of Chicago Press, 2005)
14 Exception, 15, Exception
15 Agamben, 15, Exception
16 Agamben, 20-21, Exception
17 Agamben, 22, Exception
18 Hussain, 744
19 Agamben, 38, Exception
20 Agamben, 38, Exception
