Richard Burt Duly Noted or Off the Record?

Preliminaries: the Divisibility of the Secret

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Preliminaries: the Divisibility of the Secret

In this essay, I call into question a series of related, uncritically examined and related positivist and historicist assumptions about the law, secrets, sovereignty, and media. These assumptions may be quickly enumerated here: 1) secrets are indivisible, hidden but waiting to be revealed; 2) whatever media the law allows admitted in court as evidence are transparent, not opaque, and hence the evidence is evidently legible; 3) live testimony is primary, its records secondary because communications technologies are regarded as instrumental and external to human beings; 4) transparent and complete legal records can be easily preserved and stored in documents, files, and archives which have a fully functionally topographical space allowing for retrieval; 5) these records, some of which may include documents obtained by subpoena or secret documents only the judge reviews in chambers, can be reconstructed by historians, journalists, attorneys, and ordinary citizens, all of whom may thus reveal the empirical truth and make it possible for historians to render the past innarrative, positivist form; 6) the judge, or sovereign, is indivisible; and 7) fiction and testimony are opposites; fiction amounts to perjury, fully conscious testimony being “the truth, the whole truth, and nothing but the truth. 1

Synthesizing these points, we may generalize that the law is understood by positivist and historicists to be indivisible. Legal evidence resists division when it is admitted. According to Cornelia Vismann, the document is the indivisible unit of the legal archive: “documents are stored individually, partly because of their external appearance (parchment, format, hanging seal), while files are always a blasted, bundled, or bunched collection (2008, 75). Law limits the divisibility of media proceeding on a case-by-case basis: indivisible written and other media transcriptions are filed and stored in the metaphorically indivisible unit of the case number. Only if conceptualized as indivisible units of indivisible media can documents be classified as top secret or declassified. The assumed indivisibility of the law enables an idealization of the unified totality of its documents and of its archive. “According to the ideal of the archive,” Vismann, writes, “the law is the sum of all files on record. They are the capital of the law” (2008, 58).

Close reading of two “conspiratorial films” (Jameson, 1992), All the President’s Men (dir. Alan Pakula 1976), J.F.K. (dir. Oliver Stone, 1992), and of two films directed by Fritz Lang, Fury (1936) and The Testament of Dr. Mabuse (1933) will show that they deconstruct the presumably indivisible secrets of the law, better understood as the in/divisible secrecy of the law: the law, that is, ceaselessly redivides the very units it divides up into material documents, the document being the indivisible unit, enclosed by a file, a case, and so on. Once we see how these films deconstruct the presumed indivisibility of the secret, sovereignty, the law, and media, we will be able to understand how the secrecy of the law deconstructs the presumed indivisibility of political sovereignty as well. Whether sovereignty takes the governmental form of a democracy or an authoritarian regime, is it is always a government in writing, dependent on the word itself become law.2

Only in retrospect will we be able to understand if the symbolically suffused collapse of the capitalistic citadels in lower Manhattan implies a break of that type or if this catastrophe merely confirms, in an inhuman and dramatic way, a long-known vulnerability of our complex civilization. . . . only “effective history” can adjudicate its magnitude in retrospect.

--Jurgen Habermas, Philosophy in a Time of Terror, 27.
“History. We don't know. We'll all be dead."

--George W. Bush, cited in “Woodward Shares War Secrets,” 2004.

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