VIOLENCE IN THE STATE OF EXCEPTIONwithin the state of exception, when the worst violence has become possible, the sovereign
ruler is simultaneously subjected to an unrestricted responsibility. Contemporary sover-
eigns, by contrast, most often represent their decisions within the state of exception as
apolitical, that is, as not separating but harmonizing ‘‘life relations.’’ Although they some-
times employ a polemical language—for example, that of a ‘‘war on terror’’—the meta-
phors they use, especially the theological ones, suggest that their decisions are beyond
the political.^50 According to Schmitt, the sovereign ruler should, on the contrary, take
responsibility for theScheidung,that is, for the violent separation his decisions actually
bring about. He should understand that, within the state of exception, when an unlimited
authority emerges, his responsibility is likewise without limits.
For at least one reason, however, Schmitt’s concept is inadequate to illuminate con-
temporary states of exception. As we have shown, Schmitt considers the state of exception
primarily from the perspective of sovereignty. His concept thus implies a complete ab-
sence of legal restrictions to state violence. In the specific case under consideration, how-
ever—Guanta ́namo Bay and, more generally, the indefinite detention of ‘‘enemy
aliens’’—the law is not absent at all. On the contrary, the enemy aliens have lost their
rightsby and in agreement with the law, and what is more, their seemingly lawless status
is in fact imposed on them by juridical rules and decisions. On January 12, 2004, for
example, the U.S. Supreme Court ruled that the policy of the federal government to
withhold the names and detention places of enemy aliens was in agreement with Ameri-
can positive law, and on June 28 it accepted, though under certain conditions, the policy
of military tribunals that decide in these cases without the possibility of appeal.^51 More-
over, as we know, even the detention circumstances at Guanta ́namo Bay, though outside
the scope of the normal legal order, are narrowly regulated by juridical rules and deci-
sions, of which Bush’s Military Order is the most important.^52
Contrary to Schmitt’s thesis, not the complete withdrawal of the legal order but the
possibility of a depersonalizing juridical violence characterizes the state of exception. What
strikes us in the case of Guanta ́namo Bay is not some kind of unrestricted physical violence
but rather a certain juristic, or at least narrowly regulated, disciplinary violence. The sover-
eign authorities, as a rule, restrain from brutalizing the detainees’ ‘‘bare lives’’ ostenta-
tiously, subjecting them instead to an almost invisible violence, controlling their bodies and
concealing their faces. The state of exception can indeed be characterized by the desubjec-
tivication of the detainees, that is, by their loss of rights and legal protections. The process
of desubjectivication is realized, however, through the law and remains incomplete, that is,
the detainees are subjected to law without being subjects of law. The detainees’ loss of rights
does not open up a lawless sphere within the legal order, but the desubjectivization is
itself—its result included—governed by a strict regime of rules and decisions.
This depersonalizing juridical violence has found its most extreme manifestation in the
Abu Ghraib prison in Iraq. What is decisive is not that fundamental rights were withheld
from the detainees; rather, what is decisive is that they have lost the ‘‘right to have rights’’
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