In The Nomos of the Earth, Schmitt argues that every legal order is founded in a kind of topology that divides the earth into regions and determines the law’s applicability to those regions. His book traces the metamorphosis of this fundamental apportionment of the earth through Western history, with decisive shifts emerging around the relationship between land and sea — and in his present-day, the relationship between the earth’s surface and the sky, where he believes the postwar nomos of the earth will play out.
As Taubes points out in one of the letters collected in To Carl Schmitt, there’s something obscene about Schmitt’s failure to address the place of the concentration camp in the nomos of the earth, and one could read Agamben’s Homo Sacer as an attempt to rework Schmitt’s argument around the very different topology of inclusive-exclusive sovereignty, as revealed most clearly in the camps. Contrary to Schmitt’s claim that the Western nomos has normally created a clearly delimited “free zone” outside the proper European sphere, Agamben points out that the kind of liminal space represented by the camp (and here one could include both the concentration camps and the refugee camps for the stateless) emerges within the political space itself. The apportionment of the earth, its new nomos, is defined by the anomalous space of the camp rather than by any supposedly distinct “outside.”
What is remarkable about our present political conjuncture is that both Schmitt and Agamben’s arguments seem to be vindicated. The U.S. has projected its dominance through air power during the entire postwar period, but with the advent of drone technology, that power more thoroughly saturates the globe than ever before. Indeed, the Obama administration has claimed the authority to kill literally anyone, literally anywhere, using drone attacks — so that the U.S.’s air power has turned the entire surface of the earth into a space where one can be arbitrarily subjected to death at any time. The camp is now the nomos of the earth precisely because the U.S.’s control of the air allows it to dominate the entire surface of the earth.
All previous apportionments of the earth — including national sovereignty and the distinction between enemy and allied nations — are swept aside in this new nomos. Now this analysis could be purely Schmittian, if not for the fact that the privileged place of U.S. soil is increasingly coming into question. Exceptional spaces had of course been opening up within the U.S. itself for decades, with “inner city” areas in particular subjected to a kind of unofficial military occupation (when they are not de facto abandoned to a state of nature). Obama has claimed the authority to carry out drone strikes on U.S. soil, but he has not yet done so, as far as we know, and it seems unlikely for the time being that he would.
A hint here might be the strange point of overlap between the inside and the outside, Guantanamo Bay. The site was selected because its location far from U.S. soil supposedly made room for extra-legal measures to be taken — and yet as with every state of exception, it became its own spontaneous form of law as even torture became routinized and regulated. We know for a fact that many of the prisoners there were innocent of any terrorist activity, but now they cannot be returned to the “normal” legal space, both because Congress has refused to allow the transfer and because a legal trial would reveal the fact that they have been tortured. Thus their status is determined not by a principled application of the law, but by “political reasons” (not wanting to disrupt the political settlement that has protected Bush-era officials from prosecution). They cannot be killed — indeed, they were brutally force-fed when they attempted a hunger strike — but here too it seems that this is not due to any legal obstacle but rather for “political reasons,” i.e., they are not killed because of the international outrage such an action would engender.
Thus the Guantanamo Bay prisoners stand at the very threshold of law and anomie, and it seems that the desire to avoid expanding the “zone of indistinction” is in part what motivated the escalation of the drone war. If the U.S. finds itself constrained from “mopping up” the Guantanamo situation by killing the remaining prisoners, it will avoid indefinitely prolonging the intolerable limbo by killing potential Guantanamo prisoners before they arrive at the camp. The remaining prisoners will presumably be left to die of natural causes, and in the meantime, the U.S.’s targets are killed before they reach the threshold between the “normal” legal space of the U.S. proper and the free-zone of the remaining surface of the globe.
What the desperate attempt to seal the “leak” between law and lawlessness from the outside overlooks, however, is that the distinction has already broken down on the inside as well. It is no accident that it is precisely Obama who has so vastly expanded the drone war, because Obama’s signature gesture is to attempt to preserve and regularize whatever political settlement he is confronted with — and so he has tried, very literally, to turn the state of exception into its own rule, with the result of unleashing a killing machine.