jamie king on Fri, 30 Jan 2004 03:05:38 +0100 (CET)

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<nettime> The Bio-Power Digest (3rd instalment) [excerpt]

Hey, entity known as Nettime

What with all of this talk about biopower, I thought some of y'all might
be interested in this 'ere Bio-Power Digest what I've been accepting 
into my inbox of late.

I daresay if you drop me a line by return I may be able to have you 
added to the author's list directly -- I won't go as far as suggesting 
you contact him personally, since he does not, possibly significantly, 
add a name to this publication.

FYI, the BPD cometh about once a month.

see you,


------> SNIP

The Bio-Power Digest (3rd instalment)


The physician says I have “Nervous Prostration”. Possibly I have – I do
not know the Names of Sickness.

- Emily Dickinson

Object ‘a’

The US litigation sector has taken time over its inevitable massive
mobilization post-S11. Only now are the outlines of the ingenious legal
strategy incubated over the last two years beginning to emerge. Lawyers
hired by victims’ families and other ‘materially damaged’ parties are
suing airport security agencies, airlines, the Port Authority of New
York and New Jersey and the owners of the World Trade Center for
‘negligence in the prevention of terrorism.’ To an extent that seems
exceptional today but is easy to imagine as a near-future norm, their
case lays bare the ‘effective fiction’ of Law’s application to anomic
life by appealing to it directly. New York district court judge Alvin
Hellerstein had little choice but to throw out American and United
Airlines’ objections, allowing the case to go ahead, because the
plaintiffs are invoking, and thus putting to the test the mechanism that
ultimately founds Law’s capture of life in every case: the ‘sovereign’,
retrospective decision to ‘apply’ Law to unlegislated anomie.

The terms of Hellerstein’s ruling lay out this logic of unlimited
liability with breathtaking candour. The airlines admitted
responsibility for the fate of the passengers on the planes, but they
argued that they couldn’t be held accountable for the effects of the
towers’ collapse, ‘because the consequences of the attacks were
unpredictable’. The Judge was bound to disagree: the airlines are
answerable for all the deaths and other ‘damage’ that day, because from
the moment the terrorists boarded the aeroplane everything was possible.
In other words, the legal principle of probability, of ‘reasonably’
intelligible cause and effect, was instantly suspended when the
‘terrorists’ appeared. By their very presence they created a sort of
subaltern ‘state of exception’, within which all laws were in force but
none could be applied. This didn’t mean the cancellation of legal
responsibility, although the latter is articulated precisely in terms of
the idealized common sense of cause and effect. On the contrary, the
impossibility of delimiting responsibility for particular effects meant
that all parties could be limitlessly accountable for everything that

Neither the space nor the patience is available here to go into why it
might be convenient right now for the Empathetic Security Statei to have
this principle, on which the application of all Law always implicitly
depends, brought a little further out into the open in a high-profile,
emotion-saturated test case. It’s at least a ‘sign of the times’ that
this happens at a moment when ‘security and public health risks’ tend to
be presented in terms of virtually permanent invisible menace,
perpetually threatening to detach cause from comprehensible effect, to
paralyse society and individuals with ever-exceptional undecideability.

A less banal chain of consequences, however, might follow from a legal
precedent unobtrusively established by the ruling, almost as a
by-product of the main vindication of Law’s biopolitical basis in
unlimited liability. According to the court, the hijacked aeroplanes
(and, by extension, all the territory attacked using them, and, by
extension, all the world in which another such attack remains
possible...) were transformed into something like zones of exception, in
which ‘anything was possible’, with all application of Law suspended
even as all laws remained in force. (Enforcement of the ‘suspended’
laws, of course, is merely deferred, until the future moment of their
unlimited retrospective application to everything ‘within’ the episode
of causal undecideability.) Accounting for the events in these terms,
however, entails determining the hijackers’ legal position in relation
to them, even if only implicitly. In traditional legal theory, the power
to initiate and end the state of exception is exclusive to the
sovereign; in fact the essential quality of sovereignty consists in this
perogative. Judge Hellerstein departs dramatically from this tradition,
for, geopolitical conspiracy theories aside, no constituted sovereign
power can be said to have ‘declared’ the airborne exception. ‘Everything
was possible’ from the moment the terrorists boarded the aeroplane: the
exceptional circumstance is unequivocally attributed to their action.
Their embarkation was the last causally intelligible act before the
suspension of legal causality, and the interlude ended with their final
‘decision’ on the flying bombs’ delivery. Whatever Hellerstein intended,
the ruling marks a breakthrough in materialist jurisprudence: sovereign
power is fully secularized, detached from all residue of divine right or
moral content, even from the need for a fixed relation to a given
sovereign body. In bestowing it on a few lightly-armed civilian
‘irregulars’, the Judge acknowledged sovereignty to be assumed,
contested and transferred, bought, sold and usurped, according to the
prosaic contingencies of material power. Never before have such plainly
subaltern subjects been endowed in Law with the regal privilege of
concentrating the ‘decision over death’ in their own miserably exposed
bodies, interrupting the legal order and in doing so renewing its
‘exceptional’ basis in the lethal management of life.

Object ‘a’.1

Some national justice systems have advanced further than others in
updating the idea of a crime from that of an event occurring at a
particular time and place to that of a pure potentiality of the criminal
body, as much an essential personal attribute before as after it first
manifests itself in whatever transgressive act. The UK leads the world
in this kind of research, with particular success in the pre-emptive
enclosure of potential or latent criminals. Nonetheless, although the
British biopolice works on the cutting edge, a few lessons remain to be
learned from overseas.

Late in 2003 the Inner London Crown Court convicted Mohammed Dica,
described without fail by newspapers as ‘an asylum seeker’, of
biological grievous bodily harm, for infecting two lovers ‘with HIV,
which causes Aids’. The verdict was ‘greeted with tears, applause and
shouts of “yes”’. Around the same time, however, a Federal court in
Switzerland showed just how far Law can really go towards annexing the
indeterminate in cases of this kind. According to Corriere del Ticino, a
Zurich ‘drug addict’ was imprisoned 15 months ago for ‘Aids
contamination’. Except that no virus but fear was actually transmitted:
he only believed he’d infected his partner, and this belief was the
basis for the original conviction. When he tested HIV-negative, the
erstwhile pathogen appealed against his sentence, but he lost his appeal
and has to stay in jail. The court ruled that, even though it wasn’t
what he was initially convicted for, having had sexual relations with
his partner made him guilty of an impossible crime under article 23 of
the Swiss penal code.

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