We are in a fight for our principles, and our first responsibility is to live by them.

—George W. Bush, September 20, 2001

1.

We are living in the State of Exception. We don’t know when it will end, as we don’t know when the War on Terror will end. But we all know when it began. We can no longer quite “remember” that moment, for the images have long since been refitted into a present-day fable of innocence and apocalypse: the perfect blue of that late summer sky stained by acrid black smoke. The jetliner appearing, tilting, then disappearing into the skin of the second tower, to emerge on the other side as a great eruption of red and yellow flame. The showers of debris, the falling bodies, and then that great blossoming flower of white dust, roiling and churning upward, enveloping and consuming the mighty skyscraper as it collapses into the whirlwind.

To Americans, those terrible moments stand as a brightly lit portal through which we were all compelled to step, together, into a different world. Since that day ten years ago we have lived in a subtly different country, and though we have grown accustomed to these changes and think little of them now, certain words still appear often enough in the news—Guantánamo, indefinite detention, torture—to remind us that ours remains a strange America. The contours of this strangeness are not unknown in our history—the country has lived through broadly similar periods, at least half a dozen or so, depending on how you count; but we have no proper name for them. State of siege? Martial law? State of emergency? None of these expressions, familiar as they may be to other peoples, falls naturally from American lips.

What are we to call this subtly altered America? Clinton Rossiter, the great American scholar of “crisis government,” writing in the shadow of World War II, called such times “constitutional dictatorship.”1 Others, more recently, have spoken of a “9/11 Constitution” or an “Emergency Constitution.” Vivid terms all; and yet perhaps too narrowly drawn, placing as they do the definitional weight entirely on law when this state of ours seems to have as much, or more, to do with politics—with how we live now and who we are as a polity. This is in part why I prefer “the state of exception,” an umbrella term that gathers beneath it those emergency categories while emphasizing that this state has as its defining characteristic that it transcends the borders of the strictly legal—that it occupies, in the words of the philosopher Giorgio Agamben, “a position at the limit between politics and law…an…