Last week, the American Civil Liberties Union (ACLU) demanded that the Obama administration release information on 600 detainees held at Bagram airbase in Afghanistan. The request mirrors that made to the Bush administration seven years before, regarding the men held in Guantánamo Bay.
The continued use of secret prisons to hold detainees - some not captured in the Afghan conflict, but brought to Bagram from elsewhere - seems contrary to the announcement of 23 January 2009 when the Obama administration, fresh into office, declared that the indefinite detention of foreign prisoners at Guantánamo Bay would end. In April, the CIA announced that it had ceased operating its network of secret prisons. Publicly at least, it seemed that the extraordinary powers claimed for the president following 11 September 2001 had been a historical anomaly, gone with Bush and his cabal.
But while the US has publicly declared a commitment to the rule of law and the closure of Guantánamo Bay, existing "black sites" like Bagram airbase and other secret locations around the world, particularly the Horn of Africa, are expected to grow. The work of organisations like the ACLU, Amnesty International and Reprieve to gain information on such places and provide legal help to detainees will become even more difficult. No detainee at Bagram has yet gained access to a US court.
Has Obama simply adopted a doctrine of the Bush administration, or does the ongoing existence of secret prisons and extralegal detention reveal something more about the limits of law itself? Jurists in the early 20th century, much like their Roman predecessors, were much preoccupied by the conditions under which the law could be suspended to preserve it. Europe was a very different place to the heavily regulated, legally dense creation of the past 40 years. In times of war, it is generally agreed that the executive branch of government could adopt emergency powers to suspend the normal legal order. The rationale is to deal with a crisis effectively, defeat the enemy or quickly distribute aid and supplies. In such a "state of exception", as investigated by Italian theorist Giorgio Agamben, normal legal rules are superseded by facts of life. The distinction between legal rule and bare necessity becomes blurred.
In a time of emergency, the Nazi jurist Carl Schmitt wrote, "sovereign is he who decides on the state of exception". No sooner had Hitler come to power than he declared personal liberties contained in the constitution of the Weimar republic to be suspended, to bring about the Third Reich. His decree was never repealed, and so the entire 12 years of his rule was, in legal terms, a state of exception during which his word was law. The definition of a sovereign, for Schmitt, is the legal power to suspend legality itself.
Interest in Schmitt was understandably renewed following the declaration by the US president George W Bush in November 2001 that "enemy combatants" would be detained without access to normal courts. The ordinary laws of war would not apply to them. This decision fitted Schmitt's concept of sovereign power to the letter. But in Agamben's reading, this is not simply a particular doctrine adopted by the Nazis and the Bush administration. Rather it is inherent in the structure of sovereignty and law. For Agamben, the "state of exception" is in fact the normal situation. The power to create legal black holes is not so much an abuse of executive power; it is something built into the nature of executive power itself.
We can think of examples closer to home. Northern Ireland was governed from the moment of its creation in 1922 with the aid of the Special Powers Act, a set of executive measures that later gave the authority for internment in 1971. The lineage from the Defence of the Realm Act 1914, via the Special Powers Act and the Prevention of Terrorism Acts to the contemporary raft of counter-terrorist legislation of the past decade is easy to trace. At all points the executive has reserved the power to decide on enemies or threats to the normal order, people who are designated as outside the sphere of law, and therefore subject to detention, torture, or even death.
The secret prison is, like the concentration camp, the physical manifestation of the state of exception, a place where law cannot penetrate. But those subject to such powers are not limited to the detainees of the "war on terror", against whom torture and extra-judicial imprisonment are said to be not only justified, but necessary. The paradigm provides a different way of thinking about, for example, the unlawful detention and violent removal of immigration detainees from the UK, under the powers invested in the secretary of state. It also offers insight into the deployment of counter-terrorist powers by the police against civil protests in our cities and at climate camp.
In contemporary sovereignty there is always a hint of dictatorship in the power to decide who is outside the law. It is against this that those who believe in the rule of law, civil liberties, human rights and equality must struggle.