Presented to the Canadian Political Science Association

Abstract: The post 9/11 move by democracies to enact security measures which challenge both domestic constitutional and international legal human rights norms, such as the creation of the Guantánamo Bay prison camp, the practice of extraordinary rendition, and the use of torture in interrogations has resulted in growing scholarly concern with the problem of states of exception. These measures, whether considered justified or not, are conceptualized by some theorists as belonging to a temporal condition associated with war time emergency. Other more critical scholars, in contrast, examine exceptions in their relation to the constitution of sovereign power. In exploring these contending analytical perspectives, my paper aims to better understand the character of contemporary exceptionalism. Using American intelligence agencies in both the pre and post 9/11 period as a case study, I explore the extent to which covert and clandestine state security practices have ever been constrained by a substantive conception of the rule of law and human rights. I ask how exceptional the current state of exception really is. In doing so, I find that norms of exception are a part of ordinary state security practice, but that an excessive focus on sovereign decision and legal black holes obscures the ambiguities of Bush administration policy. Despite the extremely troubling nature of the war on terror, I conclude there is hope for societal contestation and the rule of law as checks on human rights abuses