The task to rethink the human is part of the democratic trajectory of an evolving human rights jurisprudence. It should not be surprising to find that there are racial and ethnic frames by which the recognizably human is currently constituted. One critical operation of any democratic culture is to contest these frames, to allow a set of dissonant and overlapping frames to come into view, to take up the challenges of cultural translation, especially those that emerge when we find ourselves living in proximity with those whose beliefs and values challenge our own at very fundamental levels. More crucially, it is not that “we” have a common idea of what is human, for Americans are constituted by many traditions, including Islam in various forms, so any radically democratic self-understanding will have to come to terms with the heterogeneity of human values. This is not a relativism that undermines universal claims; it is the condition by which a concrete and expansive conception of the human will be articulated, the way in which parochial and implicitly racially and religiously bound conceptions of human will be made to yield to a wider conception of how we consider who we are as a global community. We do not yet understand all these ways, and in this sense human rights law has yet to understand the full meaning of the human. It is, we might say, an ongoing task of human rights to reconceive the human when it finds that its putative universality does not have universal reach.

The question of who will be treated humanely presupposes that we have first settled the question of who does and does not count as a human. And this is where the debate about Western civilization and Islam is not merely or only an academic debate, a misbegotten pursuit of Orientalism by the likes of Bernard Lewis and Samuel Huntin who regularly produce monolithic accounts of the “East,” contrasting the values of Islam with the values of Western “civilization.” In this sense, “civilization” is a term that works against an expansive conception of the human, one that has no place in an internationalism that takes the universality of rights seriously. The term and the practice of “civilization" work to produce the human differentially by offering a culturally limited norm for what the human is supposed to be. It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization becomes the condition for the production of the human to the extent that a “Western” civilization defines itself over and against a population understood as, by definition, illegitimate, if not dubiously human.

A spurious notion of civilization provides the measure by which the human is defined at same time that a field of would-be humans, the spectrally human, the deconstituted, are maintained and detained, made to live and die within that extra-human and extrajuridical sphere of life. It is not just the inhumane treatment of the Guantanamo prisoners that attests to this field of beings apprehended, politically, as unworthy of basic human entitlements. It is also found in some of the legal frameworks through which we might seek accountability for such inhuman treatment, such that the brutality is continued——revised and displaced—in, for instance, the extra-legal procedural antidote to the crime. We see the operation of a capricious proceduralism outside of law, and the production of the prison as a site for the intensification of managerial tactics untethered to law, and bearing no relation to trial, to punishment, or to the rights of prisoners. We see, in fact, an effort to produce a secondary judicial system and a sphere of non-legal detention that effectively produces the prison itself as an extra-legal sphere maintained by the extrajudicial power of the state.

This new configuration of power requires a new theoretical framework or, at least, a revision of the models for thinking power that we already have at our disposal. The fact of extra-legal power is not new, but the mechanism by which it achieves its goals under present circumstances is singular. Indeed, it may be that this singularity consists in the way the “present circumstance” is transformed into a reality indefinitely extended into the future, controlling not only the lives of prisoners and the fate of constitutional and international law, but also the very ways in which the future may or may not be thought.

How then finally are we to understand this extra-legal operation of power? I suggested earlier that the protocols governing indefinite detention and the new military tribunals reinstitute forms of sovereign power at both the executive and managerial levels. If the chronology of modern power that Foucault relays and disputes in his essay “Governmentality” implies that sovereignty is for the most part supplanted by governrnentality, then the current configuration of power forces us to rethink the chronology that underwrites that distinction, as he also suggested we must do. Moreover, if state power now seeks to instate a sovereign form for itself through the suspension of the rule of law, it does not follow that the state ceases to manufacture law. On the contrary, it means only that the law it manufactures, in the form of new military tribunals, is widely considered illegitimate by national and international critics alike. So it is not simply that governmentality becomes a new site for the elaboration of sovereignty, or that the new courts become fully lawless, but that sovereignty trumps established law, and the unaccountable subjects become invested with the task of the discretionary fabrication of law.

This contemporary resurgence of sovereignty is distinct from its other historical operations, but remains tied to them in certain important ways. In “Governmentality” Foucault distinguishes between the art of government, which has as its task the management and cultivation of populations, goods, and economic matters, and the problem of sovereignty, which, he maintains, is traditionally separated from the management of goods and persons, and is concerned above all with preserving principality and territory. Indeed, sovereignty, as Foucault sketches its evolution from the sixteenth century onwards, comes to have itself as its highest aim. He writes, “In every case, what characterizes the end of sovereignty, this common and general good, is in sum nothing other than the submission to sovereignty. This means that the end of sovereignty is circular: this means that the end of sovereignty is the exercise of sovereignty” (95). He calls this the “self-referring circularity of sovereignty” from which it follows that sovereignty’s main aim is the positing of its own power. Sovereignty’s highest aim is to maintain that very positing power as authoritative and effective. For Machiavelli, Foucault argues, the primary aim of the prince was to “retain his principality” (95). The more contemporary version of sovereignty has to do with the effective exercise of its own power, the positing of itself as sovereign power. We might read the animated traces of this sovereignty in the acts by which officials “deem” a given prisoner to deserve indefinite detention, or the acts by which the executive “deems” a given prisoner to be worthy of a trial, or the acts by which the President decides final guilt or innocence, and whether the death penalty ought to be applied.

Foucault distinguishes governmentality from sovereignty by claiming that governmentality is an art of managing things and persons, concerned with tactics, not laws, or as that which uses laws as part of a broader scheme of tactics to achieve certain policy aims (95). Sovereignty, in its self-referentiality provides a legitimating ground for law, but is for that reason not the same as the law whose legitimacy it is said to underwrite. Indeed, if we take this last point seriously, it would seem that governmentality works to disrupt sovereignty inasmuch as governmentality exposes law as a set of tactics. Sovereignty, on the other hand, seeks to supply the ground for law with no particular aim in sight other than to show or exercise the self-grounding power of sovereignty itself: law is grounded in something other than itself, in sovereignty, but sovereignty is grounded in nothing besides itself.

For Foucault, then, governrnentality regards laws as tactics; their operation is “justified” through their aim, but not through recourse to any set of prior principles or legitimating functions. Those functions may be in place, but they are not finally what animates the field of governmentaliry. Understood in this way, the operations of governmentality are for the most part extra-legal without being illegal. When law becomes a tactic of governmentality, it ceases to function as a legitimating ground: governmentality makes concrete the understanding of power as irreducible to law. Thus governmentality becomes the field in which resurgent sovereignty can rear its anachronistic head, for sovereignty is also ungrounded in law. In the present instance, sovereignty denotes a form of power that is fundamentally lawless, and whose lawlessness can be found in the way in which law itself is fabricated or suspended at the will of a designated subject. The new war prison literally manages populations, and thus functions as an operation of governmentality. At the same time, however, it exploits the extra-legal dimension of governmentality to assert a lawless sovereign power over life and death. In other words, the new war prison constitutes a form of governmentality that considers itself its own justification and seeks to extend that self-justificatory form of sovereignty through animating and deploying the extra-legal dimension of governmentality. After all, it will be who deem suspected terrorists or combatants “dangerous” and it will be “officials,” not representatives of courts bound bylaw, who ostensibly will review the cases of those detained indefinitely. Similarly, the courts themselves are conceived explicitly as “an instrument” used in the service of national security, the protection of principality, the continuing and augmented exercise of state sovereignty.

Foucault casts doubt on a progressive history in which governmentality comes to supplant sovereignty in time, and argues at one point that the two together, along with discipline, have to be understood as contemporary with each other. But what form does sovereignty take once governmentality is established? Foucault offers a narrative in which governmentality supports the continuation of the state in a way that sovereignty no longer can. He writes, for instance, “the art of government only develops once the question of sovereignty ceases to be central” (97). The question of sovereignty seems to be the question of its legitimating function. When this question ceases to be asked, presumably because no answer is forthcoming, the problem of legitimacy becomes less important than the problem of effectivity. The state may or may not be legitimate, or derive its legitimacy from a principle of sovereignty, but it continues to “survive” as a site of power by virtue of governmentalization: the management of health, of prisons, of education, of armies, of goods, along with providing the discursive and institutional conditions for producing and maintaining populations in relation to these. When Foucault writes that “the tactics of governmentality . . . make possible the continual definition and redefinition of what is within the competence of the state and what is not,” he avows the dependency of the state—its operation as effective power—-on governmentality: “The state can only be understood in its survival and its limits on the basis of the general tactics of governmentality” (103). For us, then, the question is: how does the production of a space for unaccountable prerogatory power function as part of the general tactics of governmentality? In their words, under what conditions does governmentality produce a lawless sovereignty as part of its own operation of power?

Foucault argues that the extra-legal sphere of governmentality emerges only once it becomes separated from the “rights of sovereignty." In this sense, then, governmentality depends upon "the question of sovereignty” no longer predominating over the field of power. He argues that "the problem of sovereignty was never posed with greater force than at this time, because it no longer involved .. . an attempt to derive an art of government from a theory of sovereignty” (101). Indeed, it appears that once a sphere of managing populations outside of law emerges, sovereignty no longer operates as a principle that would furnish the justification for those forms of population management. What is the use of sovereignty at this point? The self-referring circularity of sovereignty is heightened once this separation of governmentality from sovereignty takes place. It offers no ground, it has no ground, so it becomes radically, if not manically and tautologically, self-grounding in an effort to maintain and extend its own power. But if the self-preserving and self-augmenting aims of the state are once more linked with “sovereignty” (delinked now from the question of its legitimating function), it can be mobilized as one of the tactics of govemmentality both to manage populations, to preserve the national state, and to do both while suspending the question of legitimacy. Sovereignty becomes the means by which claims to legitimacy function tautologically.

Although I cannot within the confines of the present analysis consider the various historical ramifications of Foucault argument, one can see that the present circumstance demands a revision of his theory. It cannot be right, as he claims, that “if the problems of governmentality and the techniques of government have become the only political issues, the only real space for political struggle and contestation, this is because the governmentalization of the state has permitted the state to survive” (103). It is unclear precisely what the relation of state to sovereignty and governmentality is in this formulation, but it seems clear that, however conditioned sovereignty may be, it still drives and animates the state in some important respects. It may be, as Foucault maintains, that governmentality cannot be derived from sovereignty, that whatever causal links once seemed plausible no longer do. But this does not preclude the possibility that governmentality might become the site for the reanimation of that lost ground, the reconstellation of sovereignty in new form. What we have before us now is the deployment of sovereignty as a tactic, a tactic that produces its own effectivity as its aim. Sovereignty becomes that instrument of power by which law is either used tactically or suspended, populations are monitored, detained, regulated, inspected, interrogated, rendered uniform in their actions, fully ritualized and exposed to control and regulation in their daily lives. The prison presents the managerial tactics of governmentality in an extreme mode. And whereas we expect the prison to be tied to law— to trial, to punishment, to the rights of prisoners—we see presently an effort to produce a secondary judicial system and a sphere of non-legal detention that effectively produces the prison itself as an extra-legal sphere. Even if one were tempted to declare that sovereignty is an anachronistic mode of power, one would be forced to come to grips with the means by which anachronisms recirculate within new constellations of power. One might claim that sovereignty is concerned exclusively with a self-grounding exercise and has no instrumental aims, but that would be to underestimate the way that its self-grounding power might be instrumentalized within a broader set of tactics. Sovereignty’s aim is to continue to exercise and augment its power to exercise itself; in the present circumstance, however, it can only achieve this aim through managing populations outside the law. So, even as governmental tactics give rise to this sovereignty, sovereignty comes to operate on the very field of governmentality, the management of populations. Finally, it seems important to recognize that one way of “managing" a population is to constitute them as the less than human without entitlement to rights, as the humanly unrecognizable. This is different from producing a subject who is compliant with the law; and it is different from the production of the subject who takes the norm of humanness to be its constitutive principle. The subject who is no subject is neither alive nor dead, neither fully constituted as a subject not fully deconstituted in death. “Managing” a population is thus not only a process through which regulatory power produces a set of subjects. It is also the process of their de-subjectivation, one with enormous political and legal consequences.

It may seem that the normative implication of my analysis is that I wish the state were bound to law in a way that does not treat the law merely as instrumental or dispensable. This is true. But I am not interested in the rule of law per se, however, but rather in the place of law in the articulation of an international conception of rights and obligations that limit and condition claims of state sovereignty. And I am further interested in elaborating an account of power that will produce effective sites of intervention in the dehumanizing effects of the new war prison. I am well aware that international models can be exploited by those who exercise the power to use them to their advantage, but I think that a new internationalism must nevertheless strive for the rights of the stateless, and for forms of self-determination that do not resolve into capricious and cynical forms of state sovereignty. There are advantages to conceiving power in such a way that it is not centered in the nation-state, but conceived, rather, to operate as well through non-state institutions and discourses, since the points of intervention have proliferated, and the aim of politics is not only or merely the overthrow of the state. A broader set of tactics are opened up by the field of governmentality, including those discourses that shape and deform what we mean by “the human.”

I am in favor of self-determination as long we understand that no “self,” including no national subject, exists apart from an international socius. A mode of self-determination for any given people, regardless of current state status, is not the same as the extra-legal exercise of sovereignty for the purposes of suspending rights at random. As a result, there can be no legitimate exercise of self determination that is not conditioned and limited by an international conception of human rights that provides the obligatory framework for state action. I am, for instance, in favor of Palestinian self determination, and even Palestinian statehood, but that process would have to take place supported by, and limited by, international human rights. Similarly, I am equally passionate about Israel giving up religion as a prerequisite for the entitlements of citizenship, and believe that no contemporary democracy can and ought to base itself on exclusionary conditions of participation, such as religion. The Bush administration has broken numerous international treaties in the last two years, many of them having to do with arms control and trade, and many of these abrogations took place prior to the events of September 11. Even the US’s call for an international coalition after those events was one that presumed that the US would set the terms, lead the way, determine the criterion for membership, and lead its allies. This is a form of sovereignty that seeks to absorb and instrumentalize an international coalition, rather than submit to a selflimiting practice by virtue of its international obligations. Similarly, Palestinian self-determination will be secured as a right only if there is an international consensus that there are rights to be enforced in the face of a bloated and violent exercise of sovereign prerogative on the part of Israel. My fear is that the indefinite detainment of prisoners on Guantanamo, for whom no rights of appeal will be possible within federal courts, will become a model for the branding and management of so-called terrorists in various global sites where no rights of appeal to international rights and to international courts will be resumed. If this extension of lawless and illegitimate power takes place, we will see the resurgence of a violent and self-aggregating state sovereignty at the expense of an commitment to global cooperation that might support and radically redistribute rights of recognition governing who may be treated according to standards that ought to govern the treatment of humans. We have yet to become human, it seems, and now that prospect seems even more radically imperiled, if not, for the time being, indefinitely foreclosed.