Citizen in Exception: Omar Khadr and the Performative Gap in the Law

Abstract

In May 2015, former Guantanamo Bay detainee Omar Khadr was released from the Bowden Institution in Alberta. Khadr’s return to society followed 14 years of incarceration for an act that he may not have committed, which may not have been a crime, which took place while he was technically a child, and which was judged by a military tribunal that has questionable status in Canadian law. This article argues that Khadr’s long imprisonment was a political decision by US and Canadian authorities that required them to use performativity to suspend the law, depriving Khadr of his rights under American law, the Canadian Charter, and various protocols of international law. This use of performance to undermine law exposes a performative gap in the law: a space in the law that allows it to be moved and shaped by performative acts. Through these acts, Khadr became effectively stateless for a period in time: a citizen-in-exception. Building from Giorgio Agamben’s theory of the state of exception, this paper draws out the role played by performativity in the suspension of law by law. Importantly, the process that led to Khadr’s situation was racially charged from beginning to end. His situation is one manifestation of the way that Muslims have been “cast out” of Western law, as Sherene Razack puts it, since 9/11.