After the Gold Rush, Part II: Hamdi, the Jury Trial, and Our Degraded Public Sphere

Consider the possibility that Guantanamo-style detention - streamlined administrative detention of the dangerous - exists not to serve the war on terror, but rather the converse: the war on terror serves Guantanamo. That possibility is at the heart of the claim that the so-called war on terror is ultimately a war on ourselves. This article examines the enemy-combatant-detention case of Hamdi v. Rumsfeld - an exemplar of a burgeoning war-on-terror jurisprudence - through the prism of the thesis that the war on terror, beneath the rhetoric of protecting the homeland, has a very different function: it serves a longstanding drive to implement and perfect Guantanamo-style detention. "Terrorism" is not so much a threat as it is an opportunity. Hamdi expresses our own internal war against the criminal-justice system, exhibiting not just our ambivalence about it, but our impulse to detach it from its Kantian moorings and to make it administrative, tribunal-like. Just as our technological prowess on 9/11 was whipsawed back against us, thereby threatening to eliminate the distinction between war and peace, so too our fundamental anxiety we feel towards our criminal justice process is whipsawed back to strike us hard, causing us to unleash that other collective drive, a drive towards a form of governmental administration at the heart of what Michel Foucault described as the "disciplinary society," a drive to overcome inhibitions in constructing a pure preventive-detention system, a drive that threatens the elimination of the distinction between civil detention and criminal punishment. Viewed from this prism, Hamdi is an emblem of how our legal culture, and indicative of how Western culture itself, has become paralyzed and corrupted by an over-commitment to a form of instrumental reasoning atrophied by a fetishism for means-ends maximization. (After all, Hamdi deploys instrumental reasoning to justify bypassing our greatest institutional expression against rampant means-ends reasoning - the criminal-adjudicatory process, with the jury trial as its crown jewel, which is the most significant vitalizing expression of our Enlightenment heritage). This article argues that the merits or demerits of Guantanamo Bay as a detention site is beside the point, an incidental issue in the larger struggle over the future of globalization and America's vision of its place within that future. Guantanamo-style detention may betray our values, but it inscribes in our pax Americana consciousness the existence of an evil, a plague, that must be vanquished. It may betray our professed self-identity, but it inscribes the major duality of our time, the happy consumer in a globalized wonderland, with its dessicated public sphere, and the religiously fanatical terrorist bent on sabotaging the entire globalization edifice. Hamdi's veil of administrative decency, then, can mute the betrayal, alleviate a bit the sting of it, all the while silently deepening that inscription, through its Weberian rationality, through its means-ends rationality that characterizes an undisciplined and rampant form of instrumental reasoning that thinkers like Jurgen Habermas have been warning us against. In the end, this article calls for a deeper awareness of not only how our civil rights and civil liberties are entangled with issues of globalization and threatened by America's hegemonic quest in our post-Cold War era, but how those rights and liberties are imperiled by 9/11's unleashing of deep cultural forces that have been percolating for centuries.