Precarious Life: The Powers of Mourning and Violence

In March 2002, the Department of Defense, led by then-Secretary of Defense Donald Rumsfeld, in coordination with the Department of Justice, announced new guidelines for military tribunals. Only six out of 650 people detained by the United States at Guantanamo Bay at the time of Butler’s writing, however, were afforded any kind of hearing under these military tribunals, which were themselves outside of any legal jurisdiction. These new military tribunals were not courts of law in which detained people were afforded a trial. The right to counsel, appeal, and repatriation was not afforded to anyone held by the United States at Guantanamo.

Moreover, no one at Guantanamo had a prisoner of war status. This means that all people held at Guantanamo, in not being recognized as prisoners, were not legal subjects and did not have full human status.

Butler marks this as a total suspension of the law in response to security concerns. This suspension of the law happened in coordination with a new state sovereignty: While decisions were made outside legal oversight, this does not mean that these decisions were absent of any structural oversight. Instead, this extralegal action occurred through an “elaboration of administrative bureaucracies” (51), in which officials decided who would be apprehended, detained indefinitely without trial, tortured, and killed.

More specifically, Butler approaches their analysis of Guantanamo through Michel Foucault’s theory of “governmentality,” the control of people and bodies and distribution of goods required to support human populations. For Foucault, governmentality is the way that state power is “vitalized.” This governmentality operates through the functioning of many departments, such as bureaucratic, legal, and state. Governmentality is not the result of direct elections and does not have a single source of power or purpose. It is diffuse in its power to produce and reproduce beliefs and practices. Governmentality is different than earlier forms of power, such as sovereign power (as in the ruling of a king).

Butler disagrees with Foucault’s historical account of power, however. Foucault argues that sovereign power—locatable most dramatically in the body of the king—gives way to the modern power of governmentality, in which power is dispersed: Power is distributed everywhere in the technology of surveillance, for example, in which people are watched without being cognizant of being watched. For Butler, governmentality does not necessarily ensure the end of sovereign power. The sovereignty of a king may be an anachronism, but Butler contends that this does not mean that sovereign power has not reanimated in new and modern ways, and the author points out that Foucault himself did not argue that the two—governmentality and sovereignty—could not exist simultaneously. Foucault, however, was not able to determine how these two forms could coexist.

Butler demonstrates the modern development of sovereign power that enables current state power in their analysis of the illegal and “indefinite detention” of “detainees” by the United States at Guantanamo Bay. This sovereignty manifests in the suspension of law in “the new war prison” (53) that is Guantanamo.

Butler examines how sovereign power extends itself into governmentality by first looking at the reasons the state gives for the suspension of the law. In the case of Guantanamo, the executive branch, working in coordination with administrators in the military department, “deem” an individual dangerous to the state. This deeming occurs outside any legal framework, within a declared state of emergency in which the state suspends law, including due process. This deeming enables “extraordinary power over life and death” (59). Those doing this deeming are not elected and are not part of the legal branch of government; rather, they are bureaucrats who are part of the fabric of governmentality. The power to deem, then, is sovereign power that exerts itself amid governmentality.

From a human rights perspective, this suspension of law in favor of deeming is dangerous because humans should not be forced to live under such conditions. No one should be presumed guilty, denied due process, and detained with no legal jurisdiction. While Butler agrees with this critique, they are making a critique of power, where these indefinite detentions augur an indefinite suspension of law and extension of sovereign power over life and death.

This sovereign power creates its own discourse: Prisoners are not called prisoners, but “detainees.” For what they are being detained, or held in waiting, is not clear. The people being held, then, exist in a pre-legal state of limbo in which all legal protections are indefinitely suspended. This portends a lawless future that, crucially, is not anarchical but instead determined by a few bureaucrats with sovereign power who have no oversight and who are “beholden to nothing and to no one except the performative power of their own decisions” (65).

Butler is not only concerned with the suspension of the law but with the tactical use of the law. The Department of Defense claims that it will conduct military tribunals (which occur without legal oversight and thus are in and of themselves a suspension of law) only for high-ranking operatives for whom there is evidence of war crimes. Thus, the Department of Defense determines who is “worthy” of tribunal and who is not. Those who are low-ranking or for whom there appears to be little evidence of crimes are refused tribunal procedure. Thus, “indefinite detention” is justified. Even if acquitted by military tribunal, a person may be determined “dangerous.” There are two extra-legal layers, then: the military tribunal itself and a subsequent and secondary “deeming” of suspected danger. This is a “replication of a principle of sovereign state prerogative that knows no bounds” (75).

International law itself, as in the case of the Geneva Convention, however, does not assert the right of a fair trial or protection from degradation and violence as a human right. Rather, it articulates “universal” human rights only for those who are members of a “recognizable” state. Butler calls this a “civilizational discourse” in which recognizable states contain recognizable human subjects under international law, and those states not recognized contain non-recognized human subjects. This enables a distinction between “legitimate” and “illegitimate” violence, so that “terrorism” is the term used to describe the violence of the “illegitimate” (88), thus inflicting yet another layer of violence on those refused subjectivity.

All of this allows for the detention center, which is as an extra-legal space in which sovereign power infiltrates governmentality’s work of managing populations by determining who in the population is “illegitimate” and thus creating “the subject who is no subject” and “neither alive nor dead” (77). Governmentality’s work of managing populations assumes not only the managing of human subjects but also the de-subjectification of humans. International law and the Geneva Convention, specifically, refuses human rights as much as it protects them, creating two classes of humans: one with full legal subjectivity and one without.