TELOSscope: The Telos Press Blog

Guantanamo and Patrick Fitzgerald: Special Prosecution as Extralegality

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.”

In the Valerie Plame case, at least three levels are at stake. The most basic is the status of “special prosecution” altogether—while it is authorized by legislation, it also stands outside of regular legality. Whether it can be subsumed under a standard liberal “checks and balances” model is at least subject to question, because it is nearly impossible to imagine such prosecution immune to partisan pressures.

The second level is precisely this partisanship, as evidenced in the outcome here. As long as the potential targets were from the enemy political camp, the prosecution was pursued vigorously. Now that we know that it was Armitage—not an interesting political target—the passion has disappeared. In other words, the point was not to punish a lawbreaker but to bring down a political enemy. Some rule of law.

(There was of course an issue of journalistic ethos in all of this: should reporters reveal sources or protect them? The fact that the liberal media, otherwise highly protective of journalists’ obligation to protect sources, argued that conservative columnist Novak should reveal his source is a parallel problem: the general ethical principle holds, except when it is opportune to sacrifice it to political expediency, as made clear in a Wall Street Journal opinion piece.)

The third level of extralegality in special prosecution, beyond the general problem of partisanship, is evidenced by the particular conduct of this case. It provides an opportunity for limitless investigation. As discussed in the New York Times on Saturday, September 2, we now understand that Special Prosecutor Fitzgerald knew the source of the disputed leak from the very start of his investigation, but nonetheless continued to fish for years. So it was not a matter of dropping out once it was determined that the culprit was not a political enemy—that would be simple and normal partisan corruption—but rather: even after there was a clear admission of guilt on the part of the gossipy culprit (Armitage), the Special Prosecutor chose to push on to find if there were any bigger and better fish to fry (Libby). This was then no longer a matter of prosecuting a crime but in fact an effort to elicit a crime—false testimony to a grand jury—in order to keep the special prosecution going. This sort of aggressive inquisition, a likely outcome of an ambitious prosecutorial habitus, indicates a systemic need to generate crime to support the bureaucratic apparatus. This rule of law, at least, thrives on its own generation of extralegality. If it’s a problem at Guantanamo, then it’s a problem in special prosecution as well.

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