CHAPTER 5

Drone Penalty

I argued in the previous chapter that attempts to appropriate the instant by proponents and machineries of a supposed painless death penalty find an extreme outside in the absolute seized in the instant by the suicide bomber. In this chapter I will discuss what I view as a different version of that same appropriative gesture, and of the death penalty, namely killing by drone.¹ By means of that practice in its current form, the executive branch of the U.S. government extends the spatial reach of its military actions across oceans and continents in the split second of electronic time that it takes for an aircraft remote-controlled from Nevada or upstate New York to unleash its missile cargo on a chosen target in, say, Somalia or Yemen. The assassinating moment becomes the measure of the worldwide reach of American power, compressing global space into a single instant of decision and action. That repression of space—its conversion into tele-electronic time—has of course very different local effects: the target is destroyed in an instant but the blast reverberates across the impact zone to claim other than the intended victim or victims; and beyond that zone, it has the potential to reverberate all the way back to the United States, its allies, or its interests in the form of terrorist blowback.

In a provocative and insightful study, to which I will return, Grégoire Chamayou analyzes the logic of drone warfare as a mirror effect of the kamikaze attack:

On one hand, the kamikaze or the suicide bomber, who crashes once and for all in a single explosion; on the other the drone, which fires its missiles repeatedly, as if nothing happened.… The kamikaze: My body is a weapon. The drone: My weapon has no body. Kamikazes are those for whom death is certain. Drone pilots are those for whom death is impossible. In this sense they represent two opposite poles on the spectrum of exposure to death.²

Chamayou’s study is primarily interested in the technico-ethical transformations brought about by the drone, in what first emerges, in the theater of World War II, through an opposition between a Japanese sacrificial morality and American technical achievement. But those two sides are not only in competition; they also form a chiasmic relation whose vectors reappear in the case of the drone:

The antagonism between the kamikaze and remote control reappears today: suicide bombings versus phantom bombings.… It sets those who have nothing but their bodies with which to fight in opposition to those who possess capital and technology. But these two regimes, the one tactical, the other material, also correspond to two different ethical regimes: the ethic of heroic sacrifice, on one hand, and the ethic of vital self-preservation, on the other. (86)

The extrajudicial killing that I will here refer to as the “drone penalty,” has come to represent, in overwhelming statistical terms, the primary, if unspoken, instance of the American attachment to capital punishment. According to data provided by Reprieve, the Bureau of Investigative Journalism, and such American organizations as Code Pink and the Long War Journal, drone strikes performed during the period from 2002 to the present have performed something in the region of 4,136–6,203 executions of so-called combatants, and other men, women and children.³ In contrast, a total of 1,483 judicial executions were performed in the United States from 1976 to this writing.⁴

My own analysis of the temporal technologies of the death penalty leads me to begin this chapter by following a very specific historical and geographical vector. For the way in which the present-day United States closes the geographical divide between its own territory and the putative enemies whom it executes abroad can be compared with a much slower and much more laborious negotiation of space. One can trace its line—a line of flux or flight—from a northern tributary beginning in Aden and its southern tributary in Mogadishu, until it converges in Zeila near the Somalian border with Djibouti, before skirting along the semidesert and steppes of the southern edge of the Sahara to track clear across Africa at one of its widest points, making stops in Khartoum (Sudan), Bilma and Agadez (Niger), Gao and Timbuktu (Mali). That track potentially or eventually passes through the lands of the ancient Ghana Empire to make a link with the West Coast of the continent. It would not be speaking figuratively to call such a line “positively medieval,” for it traces one of the major trade routes of the Middle Ages along a dividing line, buttressed by the desert sands, between the Islamic east and north and the animist cultures of sub-Saharan Africa. And it would not be speaking figuratively to call that line positively, in the sense of thoroughly medieval, for it provided one of the paths for the development of the slave trade whose already existing African versions would come, following the European Renaissance, to be rationalized, supersized, and globalized to feed the insatiable appetite for coerced labor of the colonizing and capitalizing West. In that way the trans-Saharan supply lines converged on the western coast of Africa, only to leap seamlessly across the Atlantic and gush their human surplus on the shores of the New World. As Édouard Glissant notes in Poetics of Relation, “The slave Trade came through the cramped doorway of the slave ship, leaving a wake like that of crawling desert caravans. It might be drawn like this: African countries to the East; the lands of America to the West.”⁵

Beginning in 2002, that line has tracked the relentless westward expansion of what might be called the transcontinental drone trade, as American Predators and Reapers faithfully follow the routes of medieval and modern human trafficking from Djibouti across to the latest bases in Niger, Cameroon, and perhaps Tunisia, for activities in Mali, and beyond.⁶ Given that first George W. Bush, then Barack Obama, with particular relish, and now Donald Trump have increasingly embraced the targeted killing option over the pesky rules of war and vagaries of public opinion concerning American boots on the ground, we may not have to wait too long before this bloodied conduit pushes as far as the western coast of Africa. Perhaps it will extend into Mauritania, where slavery was abolished only in 1981 but is still widely practiced; or south into Senegal, where Barack and Michelle Obama were photographed in 2013, staring pensively and poignantly from a door of no return on Goree Island;⁷ or into Guinea and Ghana and the familiar bastions of the European triage and relay of slavery that were established starting in the fifteenth century. Following that, perhaps it will come full circle, home to roost somewhere between the tobacco plantations remaindered for tourists in Jamestown, and the smoke-free and sterile very-much-open-for-business CIA operations rooms of Langley, Virginia. But that will not be because Rand Paul has proven the prescience of his March 2013 filibuster,⁸ such that Hellfire missiles have begun to be unleashed on your local Starbucks. Rather, it will be because the history of capital punishment has always intersected, in the period following the Enlightenment, with the history of slavery.

My intention here is not to engage in a calculus that would mean weighing the ratio of Americans executed as against Somali, Yemeni, or Pakistani lives wasted; or to assess the racial and socioeconomic comparisons between the benighted of Africa and South Asia, and poor and black segments of the US population that are so shamefully overrepresented in capital punishment statistics; nor even to debate the necessary distinctions to be made between those that the law has decided to convict for capital crimes perpetrated against fellow citizens within the United States, and those living overseas who are determined by the U.S. government, with ever-widening interpretive liberality, to fall within the ambit of the September 2001 Congressional Authorization for Use of Military Force.⁹ For a long time the only substantial public American policy document that existed concerning drones was a speech delivered by Obama at the National Defense University on May 23, 2013.¹⁰ In that speech, the president based the legality of drone strikes on the September 2001 Authorization to Use Military Force while at the same time stating his intention “to engage Congress and the American people in efforts to refine, and ultimately repeal, the AUMF’s mandate.” The draft of a new AUMF, making reference to the Islamic State, was submitted to Congress in February 2015 but no legislation was enacted during the remainder of Obama’s second term.¹¹ On July 1, 2016, an executive order was issued covering measures to address civilian casualties in U.S. operations involving the use of force, and on August 6, in response to an ACLU freedom of information lawsuit, Obama released a Presidential Policy Guidance document outlining the conditions regulating targeted killing.¹²

Obama’s 2013 speech might be read as a response to the troubling questions raised by Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, whose 2010 report exposed in guarded but explicit terms the multifarious International Humanitarian Law implications of targeted killing such as is practiced by the United States. In particular, the report points to requirements of transparency and accountability under international law, noting that “no State has disclosed the full legal basis for targeted killings.… Nor has any State disclosed the procedural and other safeguards in place to ensure that killings are lawful and justified, and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished.”¹³ That finding echoes one of the introductory comments made in the report, namely that the failure of states adopting the practice to respect or consult “the policies and practice of the vast majority of States” correlates with the fact that “many of the justifications for targeted killings offered by one or other of the relevant States in particular current contexts would in all likelihood not gain their endorsement if they were to be used by other States in the future.”¹⁴

Beyond that UN Report, there does exist the finding of a duly constituted judicial instance, the Peshawar High Court. The chief justice of that court, Dost Muhammad Khan, determined in the single case of Pakistan that drone strikes violate sovereignty and are illegal whether or not they have been consented to by the local government. According to his decision, a strike that takes place in an area, such as the Federally Administered Tribal Areas of Pakistan, where there is no armed conflict, is by definition inflicted against a civilian and constitutes a violation of international human rights law. It would seem possible in principle to extend that jurisprudence to Yemen, Somalia, or any other place where the West markets its technological prowess in confrontation with more or less bare lives.¹⁵

The correlation I made earlier between capital punishment and slavery compares the two rhythms of death penalty temporality that have been in play since the beginning of this discussion: on the one hand, a structure of suspension whose forms include remand, trial, testimony, cross-examination, deliberation, and incarceration and nonparole; on the other hand, the structure of the instant, of decision, sentence, and execution. Slavery—limited here to the New World enslavement of African peoples—is obviously a complex phenomenon with a particular historical duration; and it harbors within it all the forms of summary execution and quasi-genocidal negligence and murder that we know. In the context of this discussion, however, a comparison between what might be called the slow time of slavery and the structures of instantaneity of the death penalty also points to something that this study might otherwise seem to overlook, namely the myriad forms of biopolitical organization, from immigration restrictions to healthcare access, to selective incarceration and police violence, by means of which an otherwise liberal democracy economizes and monetizes the life of its people, or indeed, hastens their death. On the one hand the death penalty is merely one among such “slower” forms of biopolitics; on the other hand, it produces the peculiar temporalities that have come into focus in my analysis of it.

Assassination by drone therefore presents itself as an object for study here not just because it functions on or over the edge of judiciality, or because it brings instantaneity into relation with intercontinental spatiality. As the comparison with slavery reveals, and as this chapter will develop further, drone warfare reinscribes the death penalty within the biopolitical nexus in a number of other ways. First, overseas drone attacks have domestic corollaries, less in Rand Paul’s sense than because drones are increasingly used for domestic and border policing and surveillance; second, remote controlled assassination redefines personhood and corporality; and third, drones reconfigure sovereignty both in terms of how political authorities relate to their citizenry, and with regard to national sovereignty as a function of international law.

To return now to the relation between the death penalty and slavery emblematized by the flesh and blood meridian beginning between Aden and Mogadishu and ending in the Americas.¹⁶ The contemporary U.S. death penalty recalls the biopolitics of slavery. It is frequently imposed in a number of southern, former slave-economy states that remain haunted by the idea of black violence, by the idea—more repressed than expressed—that violence cannot not result from the very real subjugation, economic or otherwise, of much of the African American population. The twisted logic of that idea is as follows: African Americans are condemned to death proportionately more frequently than whites because they are more violent; and indeed, how can they not become violent when we whites provoke them to it by various means of social and economic deprivation (in the same way that, as slaves, they had to be beaten into submission to protect slave-owners from what was feared as an imminent, because just, revolt).

Under slavery, capital crimes extended to all manner of offenses that could be construed as cases of lèse-majesté, and forms of execution perpetuated practices of excessive cruelty that American law, including of course the Eighth Amendment, sought to abolish. As Carol S. Steiker and Jordan M. Steiker recount in their recent comprehensive study of the actions of the Supreme Court vis-à-vis capital punishment, “As slaves began to outnumber whites in the South, white owners increasingly feared violence or insurrection.… Slaves convicted of murdering their owners or of plotting revolt often were subject not merely to ordinary death by hanging, but to even more terrifying and gruesome forms of execution.… The corpses of slaves executed for revolt might also be hung in chains or dismembered.”¹⁷

Those types of unconstitutional cruelty come into focus in the specific extrajudicial killings that extended well beyond the end of slavery proper, namely lynchings. Lynching returns a supposedly more enlightened postbellum socius to all the abuses of slavery and its inhumane treatment of persons. Its disproportionate, terroristic violence functions within the same structure of fear and revenge that characterized the period of slavery, namely fear of a just vengeance that might now be carried out by blacks against whites, and revenge for any perceived or real violence by blacks against whites. Lynching, like racist practices of capital punishment, aimed to exorcise the fear of black violence by exaggerating it, then preemptively repressing it: “After the Civil War and the end of slavery, the use of capital punishment in the South continued to have strong racial overtones—echoing and being echoed in return by the race-based mob violence of the practice of lynching.”¹⁸ Furthermore, the form of black violence that white Southerners feared more (fantasmatically) than anything else was the rape of a white woman by a black man, which was a smokescreen for the very real—and indifferently punished—sexual violence of white men against black women. As a result, though rape was commonly a capital crime until being removed from northern state statutes in the period 1829–60, as of 1954 it remained on the books in sixteen southern states and was used primarily to execute blacks.¹⁹ It was a law decreeing public hanging for rape, as opposed to the electric chair for murder, that brought 20,000 onlookers, and Rainey Bethea—a black man who had confessed to rape and murder but was charged solely with rape—to the gallows in Owensboro, Kentucky, in 1936.²⁰ Beyond those judicial examples, the suspicion or charge of black (male) on white (female) rape was a prime mover for lynching: “Never was the (white) crowd’s desire to see lethal justice done stronger than in cases involving black rapists.”²¹ Rape, or even the slightest hint of it, alleged or proven, mobilized lynch mobs like no other crime, as we know from the shocking torture and murder of Emmett Till as late as 1955.

More important, Steiker and Steiker also show the extent to which lynching, and the history of racially motivated capital punishment in the South more generally, infected legislative and jurisprudential debates concerning punishment, particularly capital punishment, for about a century, and all the way to Gregg in 1976.²² They cite the example, in 1906 in Tennessee, of the Supreme Court’s decision to review the case of a black man, Ed Johnson, convicted of rape and sentenced to death. He was taken from his cell, hanged from a bridge, and shot more than fifty times, including five times at point-blank range by a deputy sheriff who pinned a message to his chest reading “To Justice Harlan. Come get your nigger now.”²³ In the period beginning in the 1890s, when lynching was at its height, until the famous Scottsboro Boys case of 1931, the Court showed itself either unable or unwilling to counter the threat and enactment of mob violence by enforcing due process and other constitutional protections as demanded by cases that came under its review. It would take another three decades, until 1963, for the situation to begin to change significantly, and what occasioned that change would again be a capital case of black on white rape. The Court declined to review the case of Frank Lee Rudolph, from Alabama, but in a highly unusual move—given that the Court was not taking up the case—one of the dissenting justices, Arthur Goldberg, made public his opinion, drafted by his clerk, Alan Dershowitz. Moreover, opening the question well beyond the terms of the litigation, Goldberg invited the Court to “decide whether the Eighth and Fourteenth Amendments to the Constitution permitted the imposition of death for the crime of rape.”²⁴ Although, as we have seen, that particular question would not be resolved until Coker in 1977, Goldberg had, in 1963, effectively introduced the terms of debate regarding the constitutionality of the death penalty that would obtain in the Court’s capital case deliberations for half a century.

Steiker and Steiker state that “but for the dramatic regional divide [between North and South] on the death penalty, the Supreme Court might never have stepped in at all.”²⁵ Their complex and detailed analysis shows overwhelmingly, as the examples just given reinforce, that the history of capital punishment in the United States since the Civil War is above all a history of convicting and executing black men charged with raping white women. And if the retrograde side of the narrative—lynching, and legislative and judicial impotence or inaction—is racially charged, so is the progressive side, for from the time of Goldberg’s memorandum until Furman and Gregg, it was the Legal Defense Fund of the NAACP that championed the cause of capital punishment unconstitutionality as part of their more general advocacy of civil rights, and their having “developed valuable experience in ‘cause’ lawyering [i]n the fight against Jim Crow and state-sponsored segregation.”²⁶ Following Goldberg’s initiative the LDF acted on what it already knew, “that the death penalty for rape was administered in a racially discriminatory manner.”²⁷

There is, for that reason, tragic irony in the fact that despite the emphasis placed by the LDF campaign on questions of race in relation to the death penalty, that very issue has remained, as Steiker and Steiker put it, “hiding in plain sight” in the Supreme Court decisions of the past fifty years.²⁸ One might see it returning, still out of sight, but brought back into the wings, with all the accompanying factors just discussed, by Clarence Thomas in 2015. What greater irony could there be, in this context, than a black man, who had accused his opponents of a figurative lynching during his Senate hearing, arguing for the reinstatement of the death penalty for rape? “The Court has also misinterpreted the Eighth Amendment,” he writes in Glossip, “to grant relief in egregious cases involving rape” (Thomas concurring, 8) before going on to cite Coker (1977) and Kennedy (2008). Coker, coming hard on the heels of Gregg’s 1976 reinstatement of the death penalty, was an attempt by the Court nevertheless to place limits on capital punishment by taking up a case, issuing from a southern state, involving not murder but rape, perpetrated by a white and not a black man. As Steiker and Steiker analyze, the Court’s choice of this case for review—two other petitions for rape cases from Georgia, involving black men, were pending—can easily be read as a desire on the part of the Justices to exclude race from the capital punishment equation: “Coker represents the height of the Court’s avoidance of race, because Georgia’s continued authorization of death for rape was simply impossible to explain or understand without examining the racial history surrounding that practice.”²⁹ Kennedy, on the other hand, some thirty years later, was the case of a black man sentenced to death for raping his stepdaughter. Though we might seem far from the paradigm inherited from slavery, Thomas cites Coker and Kennedy, as well as Roper’s 2005 decision against capital punishment for a juvenile, as examples of the Court’s overreach “in its ceaseless quest to end the death penalty through undemocratic means” (Glossip, Thomas concurring, 10). He therefore evokes what he considers to be the activist jurisprudence of recent times, but at the same time, no doubt unwittingly, implies and implicates the much longer history that we have just reviewed, with its toxic combination of slavery and racist murder occurring on the edges, or beyond the bounds of constitutionality and judiciality; and similarly implied and implicated in that history is a shamefully passivist judiciary that, decade after decade, failed to redress the wrongs of that racist past or stand sufficiently firm on constitutional principle.

A different intersection between slavery and the death penalty occurs in discourses of both abolition and anti-abolition, namely in the concurrence of economic and moral questions that framed the debate concerning slavery, and continue to frame discussion concerning the mechanics of capital punishment. That is to say, slavery was a moral outrage for abolitionists and an economic necessity for nonabolitionists; the death penalty is a moral outrage for abolitionists, and its cost constitutes an important element of debate for both abolitionists (it is far more expensive than incarceration) and retentionists (yes, but that is because of endless appeals). Similarly, fault lines that emerged in American democracy, and its judiciary, during the period of slavery, extend into the practice of the death penalty: opposition between state rights and federalism, or questions of principled leadership on contentious issues versus simple obedience to a perceived or expressed majority opinion. Abraham Lincoln, whatever his hesitations, tergiversations, or convoluted strategizing, made emancipation a matter of principle; similarly, one might say, though with far lesser stakes, Obama led the people toward a more enlightened position on gay and gender rights. But no presidential nominee of either party has expressed opposition to the death penalty since Michael Dukakis in 1988, and no major politician in recent memory has seen fit to make capital punishment a topic for public discussion, let alone make abolition a policy goal. Instead, the country was treated to the “principled” stand of candidate Bill Clinton breaking off his campaign engagements to be personally present in Arkansas for the execution of Ricky Ray Rector in 1992; or to George W. Bush’s 152 executions in five years as governor of Texas.

The basic principles of human rights, of life and liberty as enshrined in the Declaration of Independence and developed in the Bill of Rights, principles that served as the basis for the Emancipation Proclamation, have failed over the last century and a half to extend into the question of the death penalty, and, in the period of the abolitions taking place across the globe since World War II, national debate in the United States concerning capital punishment has more or less remained confined to the Supreme Court. That national failure to address the issue produces parallels between how the nineteenth-century slave was freed but denied the rights of that freedom until more than halfway through the twentieth century and the perversions of judicial process that we have seen, such as a convict languishing in prison for decades before finally being executed. Though the parallels by no means run in the same direction or according to the same logic, it is clear in the final analysis, as Derrida summed it up, that “one can understand nothing about the situation of the United States faced with the death penalty without taking into account … the history of the federal state, the history of racism, the history of slavery, and the long, interminable struggle for civil rights, the still critical relation of the states to the central government and federal authority” (DP I, 74).

The slavery-punishment nexus is further analyzed, in terms that remain coextensive with the death penalty, in the work of Colin Dayan. Her arguments are summarized succinctly in The Story of Cruel and Unusual and developed in more detail in The Law Is a White Dog.³⁰ In the first book she reads how, as we have seen, the use of the term “cruel and unusual” in the 1689 English Bill of Rights was taken up and repeated by the 1791 American Bill of Rights, but that, as a result, the latter document failed to prohibit on the grounds of cruelty the principle of excessive punishment as distinct from obviously egregious forms of punishment: “If the methods of punishment used in the United States today—the death penalty, prolonged solitary confinement, extreme force, and psychological torture—seem barbaric by our standards and by those of the rest of the so-called civilized world, this can be traced to the colonial history of the legal stigmatization and deprivation of a group considered less than human.”³¹

American law and penal practice all the way to Supermax prisons, solitary confinement, Guantanamo Bay, and black prison sites, Dayan demonstrates, are inextricably linked to the problem of defining the personhood of a slave. Punishment and cruelty became questions precisely in the context of slavery, where it was a matter, in the first instance, of refining harsh treatment of persons deprived of right according to a predominantly economical rationale: A bleeding or injured slave is an unproductive slave. From there the doctrine was imported into the context of incarceration, for, as Dayan emphasizes, the Eighth Amendment prohibition, by specifically speaking of cruel and unusual punishment in the context of bail and fines, “is the only provision of the Bill of Rights that explicitly relates to prisoners.”³² As we saw in Chapter 1, prison and hard labor as excessive punishment are in question in Weems in 1910, and Dayan argues that it was the prisoners’ rights movements of the 1970s and 1980s that brought about revisions of Eighth Amendment jurisprudence in a way that overlapped with the considerations of such death penalty milestone cases as Furman, where, of course, cruel and unusual was also explicitly related to questions of racial inequality.³³ Similarly, practices of detention, as well as treatment of the racial other, are again foregrounded in relation to Guantanamo Bay and the Abu Ghraib scandal, in the context of the post-9/11 constitutional overreach that has also given us assassination by drone.³⁴

That history of the personhood of a slave is, as Dayan shows, complex. Its crux is, no doubt, the paradox of treating slaves as chattels or things but rehabilitating their personhood when it came to punishing them: “For this piece of property became a person only in committing a crime.… No longer disabled in law, the slave could be recognized as a thinking thing. He was treated as a person, capable of committing acts for which he might be punished as a criminal.”³⁵ Nor is such a paradox without historical precedent; nonhuman animals, for example, were tried, convicted, and punished for crimes in Europe from the Middle Ages to the second half of the seventeenth century. But, as Dayan argues, the status of the slave was defined by reference less to subhuman animals than to the concept, in English law, of the deodand, which extended criminal agency to objects such as a tree or cartwheel.³⁶ The slave had “liability but no rights,” remaining “vulnerable to legal prosecution though deprived of personality,” capable of committing “criminal but not civil acts.”³⁷ That novel status of the slave prevented a trader, in Boyce v. Anderson (1829), from recovering damages for lost cargo: Slaves were declared in that case not to be simply “a common package,” but neither were they recognized as anything more than “mere property.”³⁸ That perverse logic is what prevented slaves from exercising the freedom they were granted by the Emancipation Proclamation, just as it kept open the jurisprudential possibility of forms of dehumanization that are exploited to this day.

Thus, though slavery has disappeared, special categories of (less than complete) personhood persist in the law. Dayan emphasizes in particular two complementary mechanisms, and points to a third, through which certain deprivations of rights have come to be accepted in contemporary American jurisprudence. The first mechanism emerges in a series of cases regarding prisoners’ rights that culminated in the 2006 Supreme Court decision in Beard v. Banks, which denied prisoners access to certain broadcasts, press, and other documents.³⁹ Effectively, because the Constitution does not specifically define a prisoner, no more than it defined a slave, jurists were able to reach back to nineteenth-century models of carceral deprivation—even by extrapolation to Benjamin Rush’s late eighteenth-century model—in order to determine what passes Eighth Amendment muster when it comes to convicts. Yet one presumes that a Clarence Thomas, whose concurring opinions in some of those cases were striking in their treatment of the prisoner as a special, lesser category of person, would refuse to acknowledge any overlap of doctrine between the definition of the slave and that of a convict.

The second mechanism leads step by step from the latitude accorded prison guards in their treatment of prisoners to the abuses of Abu Ghraib, Guantánamo Bay, and black detention sites. Debate turns not on the acts themselves and their effect on detainees or prisoners, but rather on the intent of the actor. As a result, according to Dayan, “the intangible self—the thinking thing—becomes detached from the prisoner, while his body comes forth as focus.”⁴⁰ She traces that development from the late nineteenth century, through Resweber in 1947—where, as we remember, only “purposeful non-promptness” was judged unconstitutional and no one had intended to inflict unnecessary pain—to the infamous 2002 torture memos issuing from the Departments of Justice and Defense. The latter, Pentagon memo, dwells in particular on the difference between the Eighth Amendment (“cruel and unusual”) and the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which was ratified by the United States in 1994 with the proviso that the “cruel, inhuman, or degrading treatment or punishment” prohibited by the Convention be interpreted in the light of the Eighth Amendment. In short, for this country, treatment or punishment could be inhuman or degrading as long as it was not cruel or unusual.⁴¹

If I have dwelled on Dayan’s argument here, it is because she essentially maintains that in all the aforementioned cases the slave is presented as a problematic category, existing somewhere between thing and person. Not only did that require, from that point on, that American jurisprudence interpret and reinterpret the rights of a duly constituted person, it also allowed that same jurisprudence to perform step by step contraventions of the very, supposedly inalienable rights upon which the Republic is based: “The mutations generated by law become part of the logic of punishment. It is not indifference to the category of personhood, but rather an obsession with it, that introduced another kind of person, anomalous and somehow extraneous to civil society,” producing as a result “connections among the offending animal or inanimate object, the slave, the prisoner, and the newly targeted terrorist or detainee.”⁴² What I am arguing here is that, coextensive with the same sort of step-by-step abrogation of constitutionality that was enabled by slavery, and coextensive with the practice of the death penalty as intersecting constitutional problem, one finds the practice of targeted killing. The enemy soldier is protected by the Geneva Convention, while the partisan or guerilla who fights in a theater of war without a uniform is not. The enemy combatant, wherever he or she be, may be targeted if he or she poses an “imminent” threat. Conversely, whoever is found in a strike zone will in the majority of cases be posthumously defined as an enemy combatant. Those policies and destitution of rights may be applied to American citizens and noncitizens alike.

The third mechanism that emerges from the nexus between slavery and punishment directly implicates the death penalty. It is the logic whereby incarceration for extended periods of time, or involving solitary or Supermax confinement, is allowed to aggravate to the extent of being considered more cruel than the death penalty. Dayan cites the repeal of the death penalty signed by Governor Bill Richardson of New Mexico in 2009. Richardson’s decision in favor of abolition was partially motivated by a visit to the maximum security unit of the state penitentiary, which gave rise to his assessment that “those cells are something that may be worse than death,” which for him made life imprisonment “a just punishment.”⁴³ Without imputing to Richardson any intention to have prisoners suffer a punishment worse than death, the proposed replacement of the death penalty by prison without parole—currently one of the most effective abolitionist arguments in the United States—emerges as a more sinister, slow form of death penalty. It bears little difference from one of the first abolitionist arguments—against capital punishment but for perpetual slavery—famously made in 1764 by Beccaria, and taken up by reformists, and proponents of prison and solitary confinement such as Rush. For Beccaria:

The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty, condemned as a beast of burden, to repair, by his labour, the injury he has done to society.… Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. I say, it has more. There are many who can look upon death with intrepidity and firmness; some through fanaticism, and others through vanity, which attends us even to the grave; others from a desperate resolution, either to get rid of their misery, or cease to live: but fanaticism and vanity forsake the criminal in slavery, in chains and fetters, in an iron cage; and despair seems rather the beginning than the end of their misery.⁴⁴

Death is preferable to being condemned as a beast of burden; perpetual slavery is a more effective deterrent than the death penalty. That is so because slavery is an egregiously intolerable treatment to inflict upon a human person, but also because, in the American context at least, slavery has always shadowed the death penalty, on the imprecise edges of constitutional acceptability, as a slow, lifelong penalty to complement a supposed rapid execution, the white master’s dream of a permanent indenture, the capacity to dispose of a human body at will whose cruelty evokes and is evoked by the instant disposal of a life put suddenly to death.⁴⁵

Slavery in America, or more precisely its discriminatory legacy, is represented by Steiker and Steiker as a most significant form of “exceptionalism” contributing to the retention and operation of the death penalty here in contrast to other Western democracies.⁴⁶ In summarizing other contributing factors, they point to a high rate of violent crime, particularly in the South, “unusual embrace of individual gun ownership, and lack of social solidarity, reflected in high levels of income inequality and a relatively weak welfare state,” and cite Frank Zimring’s critique of a “distinctive culture of vigilante justice” and “an illuminating connection between a history of lynching early in the twentieth century and the willingness to conduct executions in the 1980s and 1990s.”⁴⁷ In the passage quoted earlier where Derrida evokes the inextricable link between the death penalty and racial inequality, he goes on to mention “the ethics of so-called self-defense that overarms the population to a degree unknown in any other country in the world, a feeling of explosive insecurity unknown in Europe, against the background of social and racial inequality” (DP I, 74). Following Dayan’s extension of the question into post-9/11 practices, however, I would argue for a further extrapolation. For not only is America’s “exceptionalist” death penalty rooted in a violence of so-called self-defense and constitutional presumptive right that arms the civilian population to a frightening degree, as well as in a propensity for vigilante justice practiced in the domestic sphere, armed vigilantism also extends to the national militarism that plays out on the global stage.

We Americans armed ourselves first in order to resist or rise against the colonial masters who subjugated us; then we armed ourselves against those who risked rising against us, or so we thought, once our mastery had been called into question (the KKK was no doubt the first postbellum well-regulated militia); now we arm ourselves against the possibility that our government will disarm us; and all too consistently, massively armed as a country and delightedly arming other countries, we dispense vigilante justice against those we call or make our enemies the world over. Since 2001 the United States has been moving heaven and earth and raising hell in an attempt to defeat a nebulous coalition of brownish non-Christian malcontents radicalized by our neocolonial connivance in their subjugation, or by our misguided assaults on their lands. Hand-wringing over domestic gun violence in general and military assault weapons in particular may or may not lead to legislation that will better protect American children, but never has it been allowed, up to the present, to call into question the automatic reflex of militarist self-defense, the unquestioned presumption of military might and prerogative as the first and last negotiation on the international stage. Successive presidents are more than willing to arm the country to the hilt and attack schools, mosques, and meeting places abroad with premeditated precision, incarnating the extraordinary disconnect between illicit mayhem at home and that we perpetrate abroad, even if their actions be as judicious as those presidents would have us believe. Similarly, there is an ocean of difference between genuine presidential and paternal concern shown African American (and just plain American) children, and the reckless disregard, through our militaristic geopolitical strategy, for African and Asian ones, as though the dividing line were as easy to draw in contemporary times as it was for a colonialist sovereign Isabel, George, or Louis.⁴⁸

Slavery and the death penalty also converge in the French Revolution. In May 1791, the Constituent Assembly debated capital punishment prior to legislating it and adopting the guillotine. As we have seen, Robespierre argued strongly against it, as did the Marquis de Sade. But a month later Louis XVI attempted his game-changing escape. The absolute monarchy could thenceforth be definitively overthrown only by being decapitated; only in that way would Article III of the 1789 Declaration of the Rights of Man—“the principle of every sovereignty resides essentially in the Nation”—come to be fully respected; only by that means would sovereignty be transferred from an inviolable monarch to the state itself, and to its people. So, as Derrida reminds us, it was the simple citizen Louis Capet whom the Convention condemned to be guillotined in January 1793:

By dividing in this way the body of the king in two, the head on one side, the body on the other, this unprecedented event was destined at least to put an end to what Kantorowicz calls the double body of the king, the king’s two bodies, the empirical and carnal, mortal body, on one side, and the body of the glorious, sovereign, and immortal function, on the other.… by dividing in two the body of Louis Capet beneath the blade of the guillotine, the revolutionaries … were reducing it to a single body. (DP I, 100–1)⁴⁹

Just over a year later, in February 1794, the same Convention abolished slavery, enacting Article I of the Declaration of the Rights of Man: “men are born and remain free and equal in rights.” Robespierre was again in the abolitionist vanguard, along with Danton. But by then the revolutionary agenda had been effectively overtaken by the slave revolt—inspired by that same Revolution—that had begun in Haiti in August 1791, two months after Louis XVI was captured in seditious flight. And although Haiti indeed obtained independence in 1804, a few months before Napoleon crowned himself emperor, the same Napoleon Bonaparte, then consul, tried to forestall that ultimate colonial emancipation by reinstituting slavery, in colonies where the abolition of 1794 had not been applied, in 1802.

Thus, the French death penalty, seemingly ready to be abolished in 1791, remained on the books for nearly two centuries, until 1981; and slavery, abolished in 1794, returned in order to restore colonial order in 1802, remaining in force until its abolition by the Second Republic in 1848 (when Victor Hugo and others argued strongly against the death penalty but were not able to have it abolished). Both death penalty and slavery, then, survive the revolution, and, following Napoleon’s 1799 coup of the 18 Brumaire, which saw the end of the last revolutionary government (the Directory), the Roman form of absolutism, the lex curiata of the Consulate, later to become the Empire, came into force. That gave rise to the modern state of exception or emergency—already promulgated by the Constituent Assembly in 1789—to which, according to thinkers such as Agamben, we all now find ourselves subject.⁵⁰

In other words, through the second great eighteenth-century revolutionary model one can again find intersections between slavery and the death penalty; one finds at the very least the idea being advanced that neither one nor the other is compatible with something called democracy, or the Rights of Man, that what the Trop doctrine will call in 1958 “evolving standards of decency” and the “dignity of man” have, since the second half of the eighteenth century, militated in favor of basic respect for both life and liberty. But one also finds that same nexus expanded into an international context: Louis XVI was judged and executed not just for his opposition to the Revolution but also for various acts of sedition. Among the thirty-three charges against him were accusations that he gave tacit support to the August 1791 Declaration of Pillnitz (by Frederick William II of Prussia and Emperor Leopold II, Marie-Antoinette’s brother) which allowed for foreign military intervention against France; that he transferred money to, and plotted with émigrés planning to march on Paris; that he conducted secret diplomacy and made alliances with other European powers; and that he delayed by two days military action to counter the August 1792 Prussian invasion of French territory.⁵¹ It was in the light of such assistance provided to sworn enemies for actions against France that Robespierre argued for summary judgment: “he has appealed to … the armies of tyrants … he is already judged.”⁵² Repeating his opposition to the death penalty, he nevertheless argues for a capital sentence, using terms that foreshadow his later invocation of terror as a general principle of democracy answering to patriotic demands: “For my part, I abhor the death penalty … and have for Louis neither love nor hate: I hate only his crimes. It is with regret that I pronounce this fatal truth … Louis must die, because the homeland [patrie] must live.”⁵³

Men are born free and remain free and equal in rights; the principle of every sovereignty resides essentially in the Nation. Alternately: all men are created equal and endowed with certain unalienable rights; to secure these rights, Governments are instituted, deriving their just powers from the consent of the governed. There should be no possible place for slavery in such formulations. Indeed, when Thomas Hobbes wrote his seventeenth-century textbook on sovereignty, the slave remained outside the protection of the commonwealth, but by the same token absolved of any responsibility toward those with power over him. In the section of chapter 20 on “Despoticall Dominion” or “dominion acquired by conquest,” the slave is mentioned in parentheses following explanation of the covenant between master and servant, by which “is not meant a Captive … (for such men, (commonly called Slaves,) have no obligation at all; but may break their bonds, or the prison; and kill, or carry away captive their Master, justly).”⁵⁴ Even in 1651 the slave was conceived of, in the light of an emerging modern, Westphalian concept of sovereignty, in the restrictive Greek and Roman terms as one “taken in war.”⁵⁵ From the Hobbesian point of view, then, the slave “enjoys” the status of an outlaw, mirroring that of the sovereign, who, as Schmitt famously insisted for the twentieth century, “is he who decides on the exception” or suspension of the law.⁵⁶

In his final, 2001–2003 seminar, The Beast and the Sovereign, Derrida refers to Hobbes in the context of the sovereign “figured sometimes as what rises, through the law of reason, above the beast, above the natural life of the animal, and sometimes (or simultaneously) as the manifestation of bestiality or human animality.”⁵⁷ For Derrida, it is in the nature of a sovereign to be both sovereign and beast, one who both personifies the law by virtue of the power to make and suspend it, and is by the same token an outlaw or criminal. Sovereign power is capable of “carrying the human sovereign above the human, toward divine omnipotence (which will moreover most often have grounded the principle of sovereignty in its sacred and theological origin) and, because of this arbitrary suspension or rupture of right, runs the risk of making the sovereign look like the most brutal beast who respects nothing, scorns the law, immediately situates himself above the law.”⁵⁸ Such a rogue sovereign is described further in Rogues, which overlaps with, and grows out of The Beast and the Sovereign seminars.⁵⁹ Rogue is he who calls others rogues—other states or heads of state—while being himself wholly rogue in the exercise of power: “it is the most powerful sovereign states which, making international right [or law] and bending it to their interest, propose and in fact produce limitations on the sovereignty of the weakest states … going so far as to violate or not respect the international right [or law] they have helped institute … all the while accusing the weaker states of not respecting international right [or law] and of being rogue states, i.e. outlaw states.”⁶⁰

Derrida is here writing in spring 2002, at the beginning of the buildup toward the invasion of Iraq, and he clearly has in mind the excesses of post-9/11 America, as he makes more explicit in Rogues and other texts.⁶¹ But one should by no means construe that specific historical context as confining his comments to the actions of the Bush White House. Indeed, as he states, it was the Clinton administration that “invented” and propagated the rhetoric regarding rogue states; and the Clinton administration’s bombing of Yugoslavia in 1999 stood out for Derrida as the prime, watershed example, of how the sovereign power of the powerful, bolstered by the discourse of humanitarianism, rides roughshod over the sovereignty of weaker states.⁶² So we could well presume that were he to have witnessed the development of drone warfare and its radical intensification under Obama,⁶³ he would not have neglected its pertinence to any discussion concerning international sovereignty, not to mention the death penalty. As he reminds us at the very beginning of the 2001 seminar, “those of you who followed the last few years’ seminars on the death penalty know that the huge and formidable question of sovereignty was central to them.”⁶⁴

It would be hard to imagine, especially in the democracies of the twenty-first century, a more Roman, medieval, or at least prerevolutionary, predemocratic practice of the state of exception than the kill list that Obama was said to consult every week or so during his presidency (we have as yet no idea how or whether that practice has continued under Trump). Since 2004, successive consuls-in-chief of the American Sway have declared more than seven hundred such states of exception over the territories of Pakistan, Yemen, and Somalia, outside any declared theater of war, many of them being the handiwork of former constitutional lawyer and Nobel Peace Prize laureate Obama. The drone was his preferred exterminating angel, hovering in the sky with a nonspecific imperial sweep above a population become slaves to airborne terror before unleashing without warning its missiles of vengeance. Divine vengeance, quite clearly, like a flash of lightning out of the heavens. George Bush seeking guidance through prayer before refusing Karla Faye Tucker’s request for clemency in Texas in 1998, or on his knees about Afghanistan or Iraq, has nothing to envy Obama, studying writings on war by Augustine and Thomas Aquinas, we are told, to assist in his deliberations over whom next to target on an ever-expanding extrajudicial death-penalty list. Conscious of his responsibility “for the position of the United States in the world,” according to his national security adviser,⁶⁵ he personally and repeatedly drew the line in the sand to take us back in regress motion across medieval trade routes, back to Yemen and Somalia, to execute its recalcitrants into submission.

My thematic insistence, from the beginning of this chapter, on the trans-African, transatlantic blood meridian is related, finally, less to the historical and geographical nexus among slave trade, death penalty, and targeted executions, than to the particular version of sovereign superterrestriality that is the intercontinental ballistico-technological arc operating, for instance, between Hancock Air Base near Syracuse, New York, or Creech Air Force Base in Nevada, from where the drones are operated, and Waziristan (Pakistan) or Elasha Biyaha (Somalia). It relates to my more general thesis that the drone penalty per se is a function less of conscience, intelligence, or even belligerence than of the technology that seems to come into play only once we get into what is euphemized as the “Naugahyde Barcalounger” or drone pilot’s seat at Creech or Hancock.⁶⁶ And that relates in turn to my even more general thesis that what appear as technologies that humans have created, at will and of necessity, for our use and convenience, in order to do everything from sharpening flint to waging war or waging executions, are in fact functions of the technics that defines us. Technology is always at work in us, I would argue, from the moment we stood upright, but even before that, from the moment we decided to remember by means of mnemotechnological devices inside or outside our skull; it exists coextensively with the thinking or rhetoric of invention that we presume to be distinct from, while giving rise to, the artifacts that we produce; and it exists coextensively, as I maintain in concluding this chapter, with even the inner recesses of thinking, or praying, that are presumed to inhabit some secret mental space.

The version of technology that emerges as a gravity’s rainbow connecting Nevada and Waziristan reposes the question of the expanding spatial parameters of Carl Schmitt’s politico-polemical front that I have tried to analyze elsewhere.⁶⁷ Schmitt’s implied preference, in insisting on the ever-present threat of conflict in order to distinguish friend from enemy and so define the political, is for a form of Spartan or gladiatorial combat, a mano a mano struggle along a clearly defined boundary separating political enemies who confront one another with the threat or promise of existential negation. He finds that model of combat problematized once a regular army has to confront a guerilla or “partisan” force: “In partisan warfare, a new, complicated, and structured sphere of action is created, because the partisan does not fight on an open battlefield, and does not fight on the same level of open fronts. He forces his enemy into another space.”⁶⁸ The other characteristic of the partisan, related to the first, is his mobility, understood as a function of a more generalized technologization of warfare in the two World Wars: “Flexibility, speed, and the ability to switch from attack to retreat, i.e. increased mobility, remains today characteristic of the partisan, and this characteristic is even more intensified through technicization and motorization.”⁶⁹ Paradoxically, though, the mobility of the partisan would separate him from his most immediate motivation, that is protecting his home territory against an invader or occupier, referred to by Schmitt as the partisan’s “telluric character”: “Such a motorized partisan loses his telluric character and becomes only the transportable and exchangeable tool of a powerful central agency of world politics, which deploys him in overt or covert war.”⁷⁰

While Schmitt seems to have remained blind to the fact that technology, in the form of the prosthetic extension of the body by means of weaponry, was always a factor of combat, he was prescient enough to realize that modern technology signaled the beginning of the end for his classical view of warfare. He viewed the 1949 Geneva Convention as struggling to deal with that transformation; it allowed for new categories of belligerents, such as members of an organized resistance, to be treated as combatants, and it continued to presume that wearing a clearly visible badge of rank still made sense in combat involving long-range weapons.⁷¹ But, true to his first concept of the political—“the specific political distinction to which political actions and motives can be reduced is that between friend and enemy”⁷²—he realized that modern warfare’s technological problematization of the enemy heralded the more troubling problematization of the political, a “new nomos of the earth,” as he called it, where war takes place in a “new type of space-appropriation” as combat among “cosmopartisans.”⁷³

Clearly, then, the twenty-first century has produced that new nomos, an exponential increase in telecommunicational expansion appropriating spaces as large as that between Mogadishu and Syracuse, New York, controlled via the ether, and serving as the front in a war among cosmopartisans. The intercontinentally removed enemy is little more than a shadowy figure on a screen, hardly a person at all, just the blip of a moving body or vehicle. Once dead, he or she becomes “bugsplat.” But that is not a word one hears in the official discourse, sparse though it be, regarding drone strikes. It is not the word Obama would have used in explaining the means by which, Aquinas and Augustine assisting, he would confront the need to defend us, like the gentleman he no doubt is, in a just war. Instead, we are led to believe that little has changed in the classical conception of the enemy, of warfare, or of the political, even when it comes to dispatching an American citizen without more process than a secretive executive discussion, as was the case when Imam Anwar al-Awlaki was killed in Yemen in September 2011, followed by his sixteen-year-old son two weeks later. And we are supposed to produce our own interpretation of how the rules of war are respected in the case of the revenge blitz of a series of strikes unleashed after a suicide bomber killed a whole cadre of CIA operatives in Afghanistan in late December 2009. In general, the target of these killings is presented as far removed from the “towel head” or “dune coon motherfucker” that an everyday grunt screams his hatred at as he wastes him or her on the latter’s own sovereign national territory that we happen to have invaded.

The parameters of the transformation of warfare into drone-assisted assassination are numerous. Grégoire Chamayou has attempted to account for them in A Theory of the Drone, analyzing in particular the ethical stakes of this new face of warfare, and its transformative effect not just for the combatants involved, but also for the political body that stands behind its soldiers. The spatial reconfiguration of warfare that takes place thanks to the drone does not reduce to the intercontinental expansion that I have just described. In the first place, any theory of the drone is ultimately a theory of a robotization of conflict—well exceeding my particular interest in its use as a form of extrajudicial death penalty—and requiring consideration of technological developments from the “unmanned” soldier to the miniature drone (cf. Drone, 56, 207–18). But, as Chamayou makes clear, in virtualizing a theater of operations that reaches from Nevada to Mali, the drone attack is at the same time concentrating its attack, in theory at least, on a single vehicle, a single room, and even a single body: The drone operator is a high-tech sniper. The consequences are twofold. In the first place, “this supposed gain in precision” allows the zone of fire to be extended to the point where it can “take in the whole world” (Drone, 56), as we have seen; in the second place, “by redefining the notion of armed conflict as a mobile place attached to the person of the enemy, one ends up, under cover of the laws of armed conflict, claiming the equivalent of a right to extrajudicial execution” (57). As a result, certain foundations of the modern political order are necessarily called into question.

On the level of state sovereignty in the traditional, post-Westphalian sense, drone attacks represent indefensible violations of the airspace and territory of countries such as Yemen, Somalia, and Pakistan. Those violations take place on a regular basis, with constant dispute, and complicated deniabilities on one side or the other, concerning whether permission was requested or granted; by extension, the whole world becomes a potential battlefield. And, as happened from the moment of the first V2 attack in 1944, the triangulation of sovereign space is also transformed, the classical horizontal projection of power being replaced by a new form of spatialization: “in very schematic terms, we have switched from the horizontal to the vertical, from the two-dimensional space of the old maps of army staffs to a geopolitics based on volumes” (Drone, 54).

But Chamayou is especially interested in the complicated transformations of political and ethical space that result from drone warfare, its modification of “the State’s relation to its own subjects” (177). In the traditional, Schmittian schema, the concept of the political relies on the always potential idea of soldiers exposing themselves to existential risk in fighting an enemy at the front on behalf of a nation; our proverbial “young men and women in uniform putting themselves in harm’s way.” Chamayou examines the changes that take place along those vectors of exposure and vulnerability once soldiers are no longer in harm’s way, at least not in that traditional, existential sense; in particular, what reciprocal effect does that have upon the protection that the state provides its citizens in exchange for their service—particularly military service—to that state. For, he argues, not only is the concept of combat thereby redefined, but so are elements of the contract binding the state to its citizens. One should not of course forget the contrary arguments advanced by proponents of drone warfare: First, it is the moral responsibility of a state and its military planners to do everything in their power to protect and preserve their own soldiers, since that means, by extension, protecting all its citizens; second, the relative precision of drone attacks means far less deleterious effect on a local civilian population, as well as on the armed forces involved, than in a ground war.⁷⁴ But those arguments do not effectively alter the analysis and critique advanced by Chamayou.

The form of social contract advanced by a thinker of modern sovereignty such as Hobbes was presumed to put an end to the natural state of war thanks to a monarchical system where the individual’s sovereign control over his own life is ceded in exchange for protection from the sovereign (which means in turn that the subject offers his life to protect the sovereign in a time of war). As Chamayou explains, Kant’s philosophy of right, a century and a half after Hobbes, introduced a new emphasis on “citizenship” to replace what was effectively a “zoopolitical sovereignty” (182) whose paradigm is slavery.⁷⁵ In Kant’s republican schema—tending toward what we now call democracy—the sovereign has a more rigorously defined duty toward his subjects; instead of giving obedience in exchange for protection, the citizens of a republic require the sovereign who exposes them to obey them (183), especially when they are being asked to risk their lives in a war. That should lead the sovereign to think twice about going to war.

However, once a republican or democratic state is able to wage war without exposing its subjects, its power is no longer bound by the same constraint. In Chamayou’s analysis, that overturning of Kant’s model began with outsourcing of military operations in the British Empire of the nineteenth century, when troops were commandeered from colonial populations to fight for the English, effectively allowing a Hobbesian monarchic commonwealth to obtain abroad so that the British population could rest easy at home as Kantian citizens. In the age of the drone a similar military outsourcing takes place thanks to the machine: “Once warfare became phantom and remote controlled, citizens, no longer risking their lives, would at the outside no longer even have a say in it” (188).

Such a crisis in, or corruption of the democratic body politic has widespread effects, as we shall shortly see, but it also has the more local effect of a crisis in, or corruption of a military ethos that remains informed by Schmitt’s traditional model of the noble Spartan wrestler-warrior, founded on values of courage and sacrifice. The classical warrior must come to terms with a new technical reality (141) that renders him invulnerable: “in the light of traditional values, killing by drones—crushing the enemy without ever risking one’s own skin—is still seen as the highest degree of cowardice and dishonor” (98). The idea that war should be waged between roughly symmetrical forces, that it be a type of duel in which combatants on both sides are exposed and at risk, and that the fighting take place on a circumscribable field of combat in some sort of real time, is an ideal that has been challenged and problematized at various historical periods, and between various enemies, notably as a result of technological innovation—bronze, steel, musket, missile, A-bomb, and so on. By the same token, it is a principle that has endured and led to rules of war that essentially forbid the use of “a weapon that by its very nature deprive[s] the enemy of the freedom to defend himself” (159). Prohibitions concerning mustard gas, or other chemical weapons would be a case in point, concerning not just risk to civilians but a type of unacceptable paralysis of warrior virility or physicality. That drone killing is another such case in point is a view shared not only by the victims of such attacks, but by ordinary soldiers in their reactions to the armchair security, and daily return to family, of drone operators who, supposedly, never find themselves in “harm’s way”: “initially the most virulent criticisms of drones came not from incorrigible pacifists but from Air Force pilots, in the name of the preservation of their traditional warrior values” (99).⁷⁶

Chamayou does not hesitate to call this transformation of polemological standards a “necro-ethics.” Once counterinsurgency tactics or strategies are abandoned in favor of antiterrorist tactics, the possibility of a political treatment of a conflict is excluded (69), with principles of international law being “eviscerated” in favor of “a nationalism of vital self-preservation” (134). It is no longer a question of changing “hearts and minds,” and indeed the counterproductivity of drone killings, their producing more combatants than they eradicate has been attested to by various official and unofficial bodies, as well as by sources as unsympathetic as retired General Michael Flynn.⁷⁷ Given widespread recognition of such counterproductivity, one should look for the motivation for pursuing a drone assassination policy in a type of culling, or grass-mowing, critiqued by Chamayou in damning terms:

The strategic plan of air counterinsurgency is now clear: as soon as a head grows back, cut if off. And never mind if, in a spiraling development of attacks and reprisals that is hard to control, the perverse effect of that prophylactic measure is to attract new volunteers.… Never mind if the enemy ranks thicken, since it will always be possible to neutralize periodically the new recruits, as fast as they emerge. The cull [tonte] will be repeated periodically, in a pattern of infinite eradication [ce schéma est celui d’un éradicationnisme infini]. (71)

Yet the most radical, and most fundamentally troubling consequence of such an antiterrorist policy based on an extreme asymmetricality is to call into question the traditional respect for a distinction between killing in war and murder: “The right to kill with impunity in war [seems] based upon a tacit structural premise: if one has the right to kill without crime, it is because that right is granted mutually. If I agree to confer upon another the right to kill me or my people with impunity, that is because I count on … the same exemption” (161). Chamayou is adamant that, absent such a reciprocity, “war degenerates into a putting-to-death,” to a situation of “execution or [animal] slaughter [abattage]” (162); in short, to a drone penalty.

The extrapolemological status of the drone penalty is reinforced in various ways: first, by means of the participation of nonmilitary entities such as the CIA (who thereby commit war crimes; Drone, 170–71), a practice introduced by Bush, perpetuated and then discontinued by Obama, and now reintroduced by Trump; second, by the fraught question of how a targeted combatant is defined (according to Obama’s Defense University doctrine, the United States targets only those “who pose a continuing and imminent threat”); third, by the limitless extension of the war zone in both space and time. In the final analysis, the summary drone death penalty kills so-called combatants in a context where there is, in many respects and according to various definitions, no combat.

The strategy of culling has of course many historical precedents, notably in the era of Western colonialism. Scandalized by technological transformations of the battlefield in the late nineteenth and early twentieth centuries, the European powers set in motion discussion that led to such international agreements as the Hague Convention of 1907, laying out principles for naval bombardment, or the Geneva Protocol of 1925, prohibiting chemical and biological weapons. At the same time, they showed much less compunction when employing their technological superiority against military forces and populations in the countries they were colonizing. Chamayou gives the example of Kitchener’s slaughter of ten thousand or so opposing soldiers with the newly invented Maxim machine gun in the Sudan in 1898 (93). Also in use for one of the first times in that battle was the expanding “dumdum” bullet. During discussion concerning the legality of such ordnance, which took place during the 1899 Hague Conference, British General Sir John Ardagh intervened with pertinent information relating to colonial situations, a question in which “quite a large number of nations [were] interested.” He described colonialism’s moral and military quandary in these terms:

In civilized war a soldier penetrated by a small projectile is wounded, withdraws to the ambulance, and does not advance further. It is very different with a savage. Even though pierced two or three times, he does not cease to march forward, does not call upon the hospital attendants, but continues on, and before anyone has time to explain to him that he is flagrantly violating the decisions of the Hague Conference, he cuts off your head.⁷⁸

The reductive dehumanization of an enemy functions consistently as the justification for extreme military measures, and discourses not so very far in tone and substance from that of General Ardagh are again mobilized in antiterrorist warfare. When sixteen-year-old Abdulrahman al-Awlaki was killed by a drone strike, he was reproached by Obama’s press secretary for not having “a more responsible father.” After that, the dead father’s irresponsibility spread to cause the execution of his eight-year-old daughter also.⁷⁹

Neocolonialist policies worthy of the nineteenth century are strongly on display in the situation that has been fundamental for the development of drone warfare, namely Israeli pacification of the Occupied Territories and of Gaza, following what Eyal Weizman terms “a relatively straightforward process of colonization, dispossession, resistance and suppression.”⁸⁰ But as he convincingly shows in the final chapter of his comprehensive study, Hollow Land: Israel’s Architecture of Occupation, following the Israeli withdrawal in 2005, Gaza “has become the world’s largest laboratory for airborne assassinations.”⁸¹ The evolution of that assassination program from a first Apache helicopter attack in 2000, through the use of drones for reconnaissance, and finally for the assassinations themselves starting in 2004, closely mirrored the development of the American program. The similarities extend into such policies as reliance upon international law governing “armed conflict,” and the definition of combatants as “all men of combat age who happened to be in the vicinity of the assassination.”⁸²

For Chamayou, at the outside limit of the necro-ethics of targeted assassinations there emerges the specter of the “drone state” (31), one that abdicates its responsibilities in several respects: it transforms Kant’s citizen-soldiers—fulfilling their duty to the republic—into assassins, thereby betraying its side of the contract that produces the state (271); and, conversely, it removes from that governmental contract the (at least potential) military obligation placed upon its subjects, allowing it to wage war without their consent or even consultation. By introducing a sense of invulnerability, by telling its subjects that they can remain protected through a war, the drone state risks not only reducing the subject’s concept of life to “the preservation of physical life at all cost” (181), but, more importantly, introducing a security state that claims to have dispensed with the tension or contradiction between protection and exposure, allowing it to “freely exercise war-waging sovereignty, but within the internal political conditions of sovereign security and protection” (ibid.). The drone state will be a state of compliant subjects, whose contestation of military adventurism is neutralized by an absence of body bags, whose concept of security is wholly determined by the new “democratic militarism” (188) to whose economy they blindly subscribe. And that blind subscription will be a form of subservience, even servility, attached as they are to a state of security whose costs remain invisible to them. They will enjoy that comfort while, a continent away, entire populations remains slaves to fear and violence within the kill zones to which the drone state has transported them.

At the end of a long note in A Theory of the Drone, in which Chamayou develops a phenomenology or pragmatics of “copresence,” he argues that the teletechnology of the drone radically reconfigures the conditions of intersubjective experience in relation to violence, “introducing a revolution in the modes of co-presence and, at the same time, in the structure of intersubjectivity” (254n).⁸³ Clearly, the relation between a drone operator who stalks a supposed combatant with a view to killing him from thousands of miles away, and that supposed combatant who can do no more than perhaps hear the humming of the UAV in the sky above him, presents a very different intersubjectivity from the world of everyday relations. That said, from the point of view of a prosthetic teletechnology, which subsumes my whole discussion here, every technology is understood to introduce distance and rupture, which makes every technology a teletechnology, and defines every intersubjective experience, by virtue of distance and rupture, as technologized. The same prosthetic structure links a human body to that of its foe, whether that combat is undertaken on the wrestling mat, in the trenches, or in the “common” space of Washington, Nevada, and Waziristan. The current intercontinental teletechnologization still presumes a face-to-face confrontation with an other whose existential negation I relish, whether that negation ensues from the barrel of a gun I fire or the nose of a missile I activate remotely.

Not only does every intersubjective relation involve such a prostheticity but the very concept of sovereignty whereby a people invents a commonwealth in order to transact its own protection is similarly a fact of artifice, as Hobbes states in his very first paragraph: “For by Art is created that great LEVIATHAN called a COMMON-WEALTH or STATE … which is but an Artificiall Man.”⁸⁴ As Derrida stresses, “this absolute sovereignty is … anything but natural; it is the product of a mechanical artificiality, a product of man, an artifact; and this is why its animality is that of a monster as prosthetic and artificial animal.”⁸⁵ The strings and string pulling of the sovereign prosthesis are explicitly revealed—pointedly laid bare in the discussion Derrida develops around first Valéry and then La Fontaine and later Celan—in the question of the marionette. There he emphasizes in parodic terms the automatic, puppetlike phallic erectability of sovereign power: “this is not a figure but an essential feature of sovereign power, an essential attribute of sovereignty, its absolute erection, without weakness or without detumescence, its unique, stiff, rigid, solitary, absolute, singular erection.”⁸⁶

There would be nothing particularly reductive about sexualizing the seemingly decisive, muscular potency of the targeted killing program in similar terms. If Obama was generally careful, during his eight years of the practice, to refrain from employing that sort of pumped-up rhetoric, he was nevertheless drawn into the logic of it; the action itself, which each decision initiates, speaks that very discourse. But the decision to condemn someone to the drone penalty is of course preceded by a lengthy surveillance that enacts in a different way the erectile verticality of this sovereign performance, operating at “the height from which the state has the power to see everything … having literally, potentially, a right of inspection over everything … power to have under surveillance, to observe, take in, archive from a superterrestrial height, by satellite, the whole globalized surface of the earth.”⁸⁷ Not only does the drone enact that sort of surveillance in a “local” manner, in both its lethal and nonlethal modes, but we have come to understand, thanks to the Snowden revelations, how states, especially the United States, assert broad global sovereignty by assuming the prerogative of a universal right of inspection.

The intersubjective copresence of participants acting within drone space therefore includes, by means of the prosthetic sovereign contraption that I have just described, not only drone operator and kill-list victim, but also the sovereign president. Among them there is greater or lesser distance but never anything other than a degree of closeness. The drone penalty calculates on the technological advantage of mythological distance when a president presumes that the executive death penalty will obviate having to put boots on the ground, keeping soldiers and the home front alike out of harm’s way (and keeping the indefinite detention gulag out of the public consciousness). But that same president is operating within a structural space that on the one hand keeps him mired in desert sands and on the other brings his distant war on terror back to being something of a civilian and civil war fought on the same ground as homegrown judicial executions.

If space both expands and compresses in that strange relation, so of course does time. The drone penalty, no less than the other forms of technologized or automatized death penalty that we have discussed, produces a sovereign technicity of the instant. It requires a precision that is as devoid of nuance as any judicial execution, not just in the execution of the execution itself—location of the target, timing of the attack—but in the temporal stringency of the whole process of drawing up the kill list, weekly meetings and decisions concerning victims, and relay along the chain of command.⁸⁸ Not everything happens in an instant, but everything is directed toward what will happen in the critical instant when the missile of execution strikes. The precision of a White House appointments schedule is refined to organize the electronic point in time that will cancel intercontinental space: An idealized simultaneity is effected by the decider who decides in Washington, the button that is pushed in Nevada, and the missile that is fired in Yemen.

Any pure instantaneity of the drone penalty is divided and relativized by those serial instances of decision, and such variables as the target’s habits and movements, presence of others, and intelligence coming from the ground. The specific temporal force of the drone penalty derives from a different structural effect, namely the veil of state secrecy that extends from “trial” and “verdict” to execution. Under that veil, the time of the sovereign’s judgment accelerates to infinite speed, the no-time of a secretive black hole within which, more dramatically than a trapdoor or falling blade, the missile strikes with lightning speed out of the sky, a rainbow meteoric arc of fire sent from executive executioner to those condemned. Indeed, not only does the condemned person remain ignorant of the day or hour of his or her execution, he or she is not even aware of having been identified as a victim. Even more egregiously, in the case of “signature” strikes based on how one behaves and whom and where one frequents, that victim does not even have to have an identity. More egregiously still, supposing that were possible, it can be enough that one comes to the aid of a victim—target or collateral, man or woman or child—to become a victim oneself, since the grim reapers of our high-minded nation of laws are also known to indulge in one of the worst excesses practiced by the terrorists they claim to be fighting, resorting to the practice known as “double-tap,” which means sending in a second missile to kill those assisting the victims, or in some cases attending the funeral of the first.⁸⁹ In these extraordinary perversions of anything resembling due process, habeas corpus is replaced by habemus cadaver or rather habemus cadavera in the plural, as the single patent fact that reaches the light of day.

The secrecy of the drone penalty thus returns us to the fantasm of the absolute seized only in the instant, the dream of the suicide bomber. The drone penalty verdict is pronounced by a godlike sovereign operating in an instant of which he alone is ultimately master.⁹⁰ Justice can be that swift only in such an absolute instant; only in such an instant can it approach, mime or mimic divine justice. And only in the space of secrecy can the instant reach its absolute atemporal ideal, for in absolute secrecy there is neither space nor time for betrayal. The (no-)space and (no-)time of absolute secrecy, of the purest, most ineffable secret, is a divine space, the innermost sanctum where only a god can exist and function, without a name, without even an utterance to in any way identify him as material existence.

A secrecy that figures the absolute seized in the instant, accessible only to a god such as drone executioner or suicide bomber seeks to be, constitutes the space described by Derrida in The Gift of Death, some years before drones appeared on the scene. He was referring to the God who sees in secret of Matthew 6:4, one “capable, more than any satellite orbiting in space, of seeing into the most secret of the most interior places.”⁹¹ But as he makes clear, that conception of secrecy as a relation of surface to depth appears naïve once it is compared with a secret outside of visibility, such as the secret relationship I have with myself, on the basis of which “(there is) what I call God in me.”⁹² Secrecy produces a chiasmus between an omniscient or omnipercipient god from whom no secret can be hidden, and an absolute secret space “within” each of us for which the obvious name is God; my innermost sanctum is also the space only a god can see into but does not really see into, for “in” there vision no longer functions. From that point of view the idealized absolute instant of the drone penalty is not only a technological contrivance of contemporary warfare—a finely tuned combination of intelligence, decision and technical prowess—but also, as currently practiced, a fundamentalist or integrist invention of a sovereign godspace.

That has the following implications. First, the national security secret that keeps the assassination program under wraps expands the front or border of the secret every time it carries out an execution. It presumes that the essential kernel of its secret can be protected throughout its operation—and the recourse by government agencies to selective leaking is no doubt a function of that presumption—but the murderous flash of light that confirms each time the success of the secret also functions as a revelation. The temporalizing and spatializing relays of the secret, culminating in its manifestation as explosion within a kill box, also render it visible. Now, while that gives no assurance that we will some day know the whole truth about these sovereign states of exception, it does mean something: not only that each time a missile explodes elements of the secret are disclosed—for example the lie concerning precision—but also that the secret remains susceptible to discovery whenever what Glenn Greenwald has so aptly called “an impotent Congress, a supine media, and a subservient federal judiciary” see fit to perform the duties entrusted to them.⁹³

Second, in contrast to the secret godhead of supervisory and supervisual surveillance represented by high technology in the service of intelligence agencies, the interiorized crypt of secrecy known only to a god who sees otherwise than by vision, who by seeing in me comes to produce or inhabit a space in me that is accessible to him alone, raises the question of, say, an Obama’s relation to the secret sacrosanct space within him where his kill-list decisions are made. We might imagine that space to overlap with the secrecy, the little godspace that we all possess and call soul or conscience; we might say that he delves deep into his innermost conscience or soul in order to justify giving permission to pull the trigger. However, we would have also to concede that space being shared with or by the so-called terrorist operative in Africa who hatches his own secret plan, or quietly detonates a bomb. It must be presumed that he too possesses that very same ownmost god within him; not some version of that god, which we could dismiss as a perversion of it, but the very same god or secret conscience of an Obama. For we are talking not about different gods or religions or even about anything religious at all, rather about the capacity, on the part of each player, for his own secret recess.

Third, in light of that, and in consonance with the logic I have outlined, the intercontinental ballistico-technological arc again comes into play to connect intimately the president executioner with whomever he condemns in secret, to connect the secret space of one to the secret space of the other, as if the two of them were exchanging a silent but deadly handshake across the oceanic expanse, an American president giving the order to kill while the other activates his bomb, both thanks to the secret inaccessibility that is called god within them. And, in the case of the Obama who spent all eight years of his mandate exploiting what he took to be the advantages of the drone penalty, such a connecting arc projects him like some automatically piloted historical missive back to the Africa he would have wanted both to own and disown—passing back, therefore, to the continent where the madcap “birther” movement (epitomized of course by his successor Trump) always wanted to relegate him. That would find the American president—whether Bush, Obama or Trump—tethered there to a repetition of the geopolitical history from which we are all supposed to have been emancipated, back floundering somewhere in the sinking Sahara sands of a blind and failing militarism that is no respecter of persons, parties or successive administrations, bound to the mission creep of a violent raison d’état functioning as the only possible final recourse, bequeathing to the world the failure of an Afghanistan ripe with opium and still threatened by the Taliban, the failure of an Iraq, and a Syria, where flesh explodes every other day, the failure to defeat a terrorism that obeys a no-brain-science logical reaction to the brutalization practiced by America and its allies in country after country, seemingly without end.⁹⁴

One cannot easily imagine an end to the death penalties of geopolitical sovereignty; one cannot presume to change the fabled sovereign logic, or “reason of the strongest” that La Fontaine’s Wolf and the Lamb so simply yet so devastatingly represents.⁹⁵ But the tautological certainty of the idea that might makes right, the structural “requirement” that sovereign power “pervert” itself, does not render any less culpable a given historical “perverting” instance such as extrajudicial assassination by drone. How, then, is one to respond to the brute violence of an overreaching sovereignty taken to its illicit murderous extreme? The question arches back from Yemen’s bewildered orphan faces and resolute militant rage alike, and includes all of us living supposedly safe and sound—as a consequence—on this side of the drone trade meridian, and elsewhere within the current first world protectorate.⁹⁶ Where might there be a resistance or defiance that also resisted the logic of a violent or militarized response? Some combination of national or international public outcry, and more specific political or judicial activism, may bring about changes in the current practice of the drone penalty, but the change of heart, or abolition of reflex militarism that one really wishes for, can by no means be presumed as a result of those arguments and actions.

The secret space of a god in us, if that is what we want to call it, is the source of every intersubjective relation. From within it—though necessarily disturbing any absolute purity we assumed that it had—comes an impulse, need, or desire to reach (out to) another. That inevitably means that any solicitation of another, however welcome it be, will somehow “disturb” the other, encroach however minimally upon her space, and more specifically, her time. The resulting interaction can amount to total abandonment to, and relish of such a disturbance, ecstatically allowing oneself to get lost in the other as though outside of time; or it can amount to an unwanted form of surveillance or intrusion, the tyranny of sovereign power and violence. In that absolute extreme case the other is destroyed, annihilated, allowed no more time, erased from time; that is the violence of the death penalty.

One can understand the original impulse to reach out, the need or desire for another, as a type of “innocence”; a first such solicitation would be something like a prayer. That is the sense of the word: In praying, one approaches, asks, begs, or implores, but it begins in the form of a simple “excuse me.” Every such relation begins more or less with that type of prayer, in the form of an “I pray you” or “I beg your pardon.” As Derrida analyzes it: “Can one address oneself to someone or indeed to any living being at all—or even something not living—without some implicit prayer coming to bend, to inflect the discourse, or even the simple silent look which, addressing itself to the other, cannot fail to ask of him or her ‘listen to me, please [je t’en prie], listen, I pray you, look at me looking at you, please, turn toward me, turn your attention toward what I’m saying or doing to you, be present to what is coming from me.’ ”⁹⁷

What one is inevitably begging or praying for in such an interruption is forgiveness for encroaching upon the other’s time, or time-space. That “innocent” interruption of another’s time and attention operates within the same structure as the institutional or political power to detain—definitely or indefinitely, unexceptionally or exceptionally—using up a subject’s time of life by means of incarceration, or cutting it short by means of execution. For as Derrida notes, “the torturer also prays his victim to receive and to be present, to be aware [sensible] of the blows he is giving him.”⁹⁸ The drone penalty mocks that temporal relation, the retention or detention of one by another, by means of an absolute reduction, where the first approach to the other, the first hailing or greeting, is an instantaneous death sentence.

One might not expect to find an affirmative politics of the time of the other, and by extension a politics of resistance to sovereignty run amok, in a discourse on poetry. But in an important passage in his “Speech on the Occasion of Receiving the Georg-Büchner-Prize” in 1960, known as The Meridian, Paul Celan refers to how the poem makes its address by letting “the most essential aspect of the other speak: its time.”⁹⁹ As Derrida explains:

It is not even, here, a poetics, still less a politics of dialogue, a dialogue during which, with help from experts and communications counselors, one would laboriously learn to let the other speak. It is not a matter of a democratic debate, during which one leaves the other his speaking time.… It is not a matter of speaking time but of letting the other, and thus of giving the other, without there being any act of generosity, effacing oneself absolutely, of giving the other its time.… It is time that one must let speak, the time of the other.¹⁰⁰

One might therefore imagine a dialogue with a drone-wielding president where one patiently explained how to give the other its time in contrast to perpetrating a rogue sovereignty, where one attempted to explain—perhaps with the aid of Augustine and Aquinas—how absolute effacement is not the same as impotence or defeat. One might manage to retain or detain him for a little or a long time, with little or no hope or chance of dissuasion or persuasion, but, whatever the result, such an intervention would not for all that itself be a discourse of pure impotence.

Or one might try a more direct approach. Given the framework within which Celan makes his case for poetry, poetry’s seeming effacement in favor of the time of the other should also be read as an expression of defiance. That is because the mouthpiece for the poetry he advocates is a figure from that paroxysm of political violence with which we are now familiar, the Terror. Lucile Desmoulins is the twenty-four-year-old wife of Camille Desmoulins, whom she has married in 1790, with Robespierre as one of the witnesses. In late 1793 her husband founds a newspaper, Le Vieux Cordelier, and in January 1794 Desmoulins writes an article that strongly condemns Robespierre for the increasingly tyrannical activities of the Committee for Public Safety. He is arrested, along with Danton, at the climax of the Terror on March 30, 1794. There follows a travesty of a trial by the Convention, at which those accused are prevented even from appearing, thanks to a new decree proposed by Saint-Just “that anyone accused of conspiracy who resists or insults national justice will be immediately expelled from the debate.”¹⁰¹ On April 5, Robespierre declares that the enemies of freedom will not be defeated by half measures, but “by going right up to them, attacking head on, relentlessly; it is by plunging into their heart the dagger of justice that we will be able to deliver freedom from all the villains who seek to destroy it.”¹⁰² Desmoulins and Danton are guillotined that same day.

Georg Büchner ends his 1835 play Danton’s Death by having Lucile Desmoulins linger near the guillotine following her husband’s execution before provoking her own arrest by crying out, “Long live the king!”¹⁰³ She will subsequently be executed on April 13. Celan calls her cry a “counterword [Gegenwort] … the word that no longer bows down.… It is an act of freedom.” However, it is to be understood not as “a declaration of loyalty to the ancien régime” but as poetry: “This … has no fixed name once and for all, but I believe that this is … poetry.”¹⁰⁴ Logically speaking, the poetry that no longer bows down is also the poetry that lets the time of the other speak. It is both decision, a punctual even perfunctory declaration, and deliberation, a slow, even passive allowance for the other. It is also, I would argue, justice, not the national dagger seized in the instant by a Robespierre already drenched in blood, but a judgment that comes at the end of a process, following due process in due time.