Now we finally learned what we all suspected: the numerous reports and testimonies about the Guantanamo and Abu Ghraib prisons were a trap to distract the attention of the public from the true secret: in the last days, big media reported that the CIA operates secret detention facilities beyond the reach of the law and outside official oversight at bases in two eastern European countries and some other Asian countries. The CIA has not even acknowledged the existence of these “black sites” with “ghost prisoners”: to do so could open the U.S. government to legal challenges, since the prisoners are there submitted to “Enhanced Interrogation Techniques” (the US newspeak for torture). The original idea was to hide and interrogate the two dozen or so al Qaeda leaders believed to be responsible for the Sept. 11 attacks, or who posed an imminent threat; but as the CIA began apprehending more people whose intelligence value and links to terrorism were less certain, the original standard for consigning suspects to the invisible universe was lowered or ignored.
What is effectively going on here? In a debate about the fate of Guantanamo prisoners on NBC about a year ago, one of the weird 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 the 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 – whatever their situation, it is better, less severe, than being dead… This reasoning tells more than it intends to say: it puts the prisoner almost literally into the position of living dead, those who are in a way already dead (their right to live forfeited by being legitimate targets of murderous bombings), so that they are now cases of what Giorgio Agamben calls homo sacer, the one who can be killed with impunity since, in the eyes of the law, his life no longer counts.
There is a vague similarity between their situation and the – legally problematic – premise of the movie Double Jeopardy: if you were condemned for killing A and you later, after serving your term and being released, discover that A is still alive, you can now kill him with impunity since you cannot be condemned two times for the same act. In psychoanalytic term, this killing would clearly display the temporal structure of masochist perversion: the succession is inverted, you are first punished and thus gain the right to commit the crime. If the Guantanamo 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 which treat them in this way are also in a kind of in-between legal status which forms the counterpart to homo sacer: acting as a legal power, their acts are no longer covered and constrained by the law – they operate in an empty space that is still within the domain of the law.
[Extract. Appeared in Artforum in December 2005. Also appeared on lacan.com]