MARC DE WILDEas such. This circumstance is even more troubling than the physical mutilations and sexual
abuses. The detainees of Abu Ghraib were deported from society with bags over their heads.
Terrorists? Maybe. No judge will confirm that they are what they are taken for. Those
detainees have completely lost their juridical personalities, effectively meaning the possibil-
ity to be acknowledged as a subject of the law before a competent tribunal.^53 They are not
outside the legal order, but handed over to what Benjamin characterized as a ‘‘formless’’
and ‘‘faceless’’ police violence beyond all accountability. The anonymous and strikingly
mobile interrogation units, moving from Guanta ́namo Bay to Abu Ghraib to Baghram,
seem to have the ‘‘nowhere-tangible, all-pervasive, ghostly presence’’ Benjamin ascribed to
that police violence.^54 Its mixture of law-preserving and lawmaking violence comes to light
in the interrogators’ authority to suspend the laws’ applicability in exceptional cases. In the
continuing war on terror that exception seems to have become the rule.
The published photos depicting sexual humiliations of those detained at Abu Ghraib
cannot be understood as the expression of a regression into earlier forms of sovereignty
that depended on a public, even theatrical staging of cruelty. The informal way the perpe-
trators are posing for their portraits to be taken—almost as if these pictures were meant
to be sent home to their families—betrays the privatized idiom of these images (which
the sexual character of the abuses seems to confirm). This privatization may indicate that
modern forms of sovereignty have become increasingly dependent on the invisibility of
state violence. Furthermore, the pictures testify to an obsession with excess, highlighting
the absence of limits to state violence. In the case of enemy aliens, even the death penalty,
in which Benjamin recognized an excessiveness of state violence escaping all attempts of
legal regulation, seems to have been removed from the public sphere.^55 The military tribu-
nals have the authority to pronounce the verdict of capital punishment, if required by an
exceptional state interest, behind closed doors. In this sense, the war on terror has indeed
resulted in a durable modification—not a mere extension but a qualitative change—in
the American legal order.^56
A distinctive feature of violence in the state of exception is the radicalization of its
impersonal character. Schmitt represents the state of exception simultaneously as a ‘‘state
of necessity [Notfall, Ernstfall],’’ in which a de facto situation—for example, the threat of
an imminent terrorist attack—makes it necessary to suspend the normal legal order. Thus,
sovereign decisions in the state of exception are supposed to be grounded in sheer neces-
sity of fact. Because of this necessity and, moreover, because of its formal and impersonal
character, the violence can acquire a reasonable appearance in the eyes of the perpetrators.
Stressing its theological background, Schmitt is in fact attempting to make the ‘‘necessity’’
even more pressing. When he emphasizes the analogy between, on the one hand, the state
of exception and, on the other, the theological Last Judgment, he risks legitimizing a
violence that, because of its assumed impersonal origins, will itself depersonalize. Perhaps
we should, on the contrary, question the necessity itself, thus seeking—with and against
Schmitt—to politicize the state of exception and to articulate the responsibility it entails.
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