Detention without Subjects: Prisons and the Poetics of Living Death

He has ceased to be a citizen, but cannot be looked upon as an alien, for he is without a country; he does not exist save as a human being, and this, by a sort of commiseration which has no source in the law.

—Guyot, “Civil Death”

In a recent study of “Indefinite Detention,” Judith Butler shows how, according to the authority that holds them, “the humans who are imprisoned in Guantánamo do not count as human.” She writes, “They are not subjects protected by international law. . . . They are not subjects in any legal or normative sense” (xvi). The Guantánamo captives—called “detainees,” not prisoners—are outside the conventions of criminal justice and military conflict, outside the state, outside subjectivity. Drawing from Carl Schmitt and Giorgio Agamben, Butler describes Guantánamo as an “exception” to ordinary procedures, created in a wartime state of emergency. Guantánamo is not a conventional modern prison, designed to discipline and punish; it is a “camp” whose inmates have lost the protections of citizenship and now endure, in an “indefinite” time and space, as “bare life.”¹ Working with the same materials, Donald Pease describes the detainees as “persons outside the existing juridical categories and refused the basic dignities of legal process” and as “exceptions to the human condition” reduced to mere “animated flesh” (14, 15). For Pease, the wartime suspension of judicial process that magically creates such monsters is an “unprecedented” breach of the social contract (6). Exploring “Guantánamo’s Symbolic Economy,” Susan Willis, too, invokes Agamben and refers to the detainees as “humans who are less than chattel; who have no status” (128, 124). In short, the prevailing account of Guantánamo in American Studies represents what Butler calls the “new war prison” as an historical anachronism, a violation of the established order that inaugurates a terrifying new state.

Much has been illuminated by such interpretations. We see, especially, how the tremendously influential thesis of Michel Foucault’s Discipline and Punish (1975)—that prisons produce self-governing subjects through isolation and surveillance—loses its explanatory power in the age of Guantánamo. As sovereignty eclipses subjectivity as the key analytic concept, incarceration seems to concern not the “soul” but war, citizenship, and the boundaries of the body politic. In the war prison, we find none of the techniques of training, labor discipline, or rehabilitation associated with the penitentiary. We confront, instead, detention without subjects: a captivity that strips away rights and mortifies subjectivity. Yet the revealing concept of the “exception” has also created some significant blind spots. Using words like “unprecedented” to protest the Bush administration’s policies, we gain a certain rhetorical force, but we risk normalizing all that came before. If the terms “exception” and “bare life” allow us to see the limits of Foucault’s “disciplinary” regime, they also tempt us to assume that such a regime was, until quite recently, the actual order of things.

The news and pictures from the war on terror are shocking, but legal and carceral dehumanization has a long history.² In this essay I will argue that a version of detention without subjects, stripping away rights and mortifying subjectivity, is not the “exception” but the very premise of the American prison. The classic penitentiary, unlike the contemporary war prison, held offenders who had been convicted through due process, and it claimed to restore some of them to citizenship, godliness, and a place in the lawful community. On these distinctions rests the claim that Guantánamo is an unprecedented institution. Yet the distinctions are less substantial than they may appear. The great penitentiaries of the early nineteenth century, the foundations of the modern prison system, were built around a myth of rebirth—the fallen convict resurrected as a worthy citizen—but such a myth demanded that the prisoner must first pass through a virtual death. The legal, material, and symbolic violence of the penitentiary regime, therefore, worked to turn the convict into a kind of animate corpse. The prisoner in the penitentiary was not only a subject in the making; he was also a figure of...