Arguments against the treatment of prisoners at Guantanamo have generally focused on the problem of establishing a zone that appeared to be outside commonly accepted rules of law. The captives were treated neither as prisoners of war, subject to treaties and international law, nor were they seen as vested with the constitutional rights applicable within the US. To some extent, this ambiguous outcome resulted from the anomalous nature of the war in Afghanistan but generally characterizes the wider war on terror: the enemy, not made up of regular soldiers, is also not a composed simply of criminals in the normal sense of the term. To date, the conflict between the liberal approach to view terrorists as criminals and respond with police action and the administration’s view of them as enemies, justifying a war footing, leaves an unresolved categorical problem, which—to say the least—has become an enormous political problem.
As a problem for political theory, Guantanamo points to concerns about a “state of exception,” as formulated by thinkers as diverse as Carl Schmitt and Giorgio Agamben. To what extent do political systems depend on exceptions? That sort of argument, evidently, could lead to an apologetic claim of the necessity of extralegality. Others may wish to comment on that line of thought. Of additional interest however is the duplication of processes of extralegality in the recent experience with special prosecution. In terms of the political spectrum, if Guantanamo was a problem for “the right,” special prosecution—especially Fitzgerald’s—is a problem for the “the left.”
