- "These Are Bad People"i -Enemy Combatants and the Homopolitics of the "War on Terror"
The "ethical" trend is in fact the "state of exception."iiJacques Rancière
The real thing about evil… isn't any of what you said. You figure out one side of it - the human side, say - and the eternal side goes into shadow. Or vice versa. It's like the old saw: What does a dragon in its shell look like? Well no one can ever tell, for as soon as you break the shell to see, the dragon is no longer in its shell. The real disaster of this inquiry is that it is the nature of evil to be secret.iiiElphaba, the Wicked Witch of the West
W(h)ither Habeas Corpus? or Jose Padilla's Body Before the Law
It is at work everywhere - though everywhere "it" is not the same - in the world it is reterritorializing,iv functioning smoothly at times, at other times in fits and starts in the new war temporalities and juridical rhythms it enacts.v It breathes new life into old discourses, it heats our bodies with all-too familiar sensations, it eats away at the comforts of uncritical reliance on critical theory. It shits on and fucks with our beloved concepts of biopolitics and sovereignty.vi "These are queer times indeed," confirms Jasbir K. Puar, ones that "require even queerer modalities of thought, analysis, creativity, and expression."vii In response to this demand, we may approach what I call "homopolitics," the new "it" on the block, as an "abstract machine" to account for the contemporary politics of the in/human in a "war on terror" traced by bio-necropolitical assemblages and critical lines of flight and differentially producing subjects drawn from and distributed across a variety of rhetorical, juridical, and cultural spaces.viii
Miami federal judge Marcia Cooke elucidated an important aspect of the homopolitical abstract machine's extrajuridicality in her rejection of Jose Padilla's claim that detention for three and a half years before formal charges were filed violated his constitutional right to a speedy trialix: law is tactically mobilized and selectively applied within and by a cultural imaginary contemporaneously colored by an exclusivist notion of the human. Along with Cooke's decision, Padilla's pretrial detention reveals that the practice of indefinite detention does not require deliverance of formal legal charges to one presumed to be a terrorist since the lack of any judicial accusations meant that Padilla's constitutional rights and due legal procedures had yet to take effect. To prosecute an individual, then, does not only begin a legal scenario culminating in an expected distribution of justice; doing so also situates the accused within legal space, a zone securing rights of subjects before the law.
To suggest, however, that Padilla has been brought before the law (that is, included within legal proceedings) finally falsely implies that he had not been "before the law" all along. Rather than presuming that Padilla had no relation to the law prior to being criminally prosecuted on conspiracy charges, we may further probe the rhetorical implications of "before the law." Given the tenor of an indistinguishability between fact and fiction in the "war on terror,"x a turn to Kafka's parable "Before the Law," in which a man from the country appears before the Law to seek an admittance proclaimed by a gatekeeper to be indefinitely deferred, becomes alluring when analyzing the contemporary juridical reality that imitates it. Inspired by Jacques Derrida's and Massimo Cacciari's respective readings of the tale, Giorgio Agamben argues that "nothing - and certainly not the refusal of the gatekeeper - prevents the man from the country from passing through the door of the Law if not the fact that this door is already open and that the Law prescribes nothing."xi On this reading, the Law, remaining open and in force, fails to demand anything from the man who is unable to enter into where he already is. As Agamben suggests, "the open door destined only for [the man from the country] includes him in excluding him and excludes him in including him. And...