Richard Burt Duly Noted or Off the Record?

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Richard Burt
Duly Noted or Off the Record?

Sovereignty and the Secrecy of the Law in Cinema

The law prohibits interfering with and deferring the “ference” [“férance”], the reference, the rapport, the relation . . . That is the law of the law, the process of a law of whose subject we can never say, “there it is,” it is here or there. It is neither natural nor institutional, one can never reach it, and it never reaches the depths of original and proper taking-place. . . . It is always cryptic; this is a secret which as caste . . . pretends to possess by delegation. The secret is nothing—and this is the secret that has to be kept well, nothing either present or presentable, but this nothing must be well kept.

--Jacques Derrida, “Before the Law,” 205

In more political terms, the Nixon tapes may offer a (conspiratorial) equivalent to the ‘photographic realism’ . . . suggesting . . . not merely a unity of place and action, but also strongly representational aesthetic . . . in which, as in so much historiography and historical fiction, what the reader/spectator longs for is to be present at the scene: to see, to hear, to find out the secret truth.

--Frederic Jameson, The Geopolitical Aesthetic, 49

What psychoanalysis and deconstructionist philosophy “inscribe” into the model of the trace, is when observed in light of changing filing technologies, the distinction between two mutually constitutive forms of writing: an erasable writing on wax tablets and transcription into a durable inscription. The latter can attain validation and truth functions because it is preceded by a canceled ur-writing that has been rendered illegible. The doubling of writing into draft and clean copy puts an end to the time of the magistrates with its emphasis on pure transmission without duplicates. Based on the technique of acta facere, writing inscribes itself into the force of law. With the taking of minutes, the law designs its own truth of reality. What Paul de Man, from a linguistic point of view, termed a “fact of language” cold from a media-theoretical point of vibe applied to the act of taking notes: it is a performative, fact producing act. Frtom he media-technological point of view, the synonymous use of “acts” and “taking note of the fact,’ as performed by Derrida in “Acts,” his reading of Paul de Man, is perfectly admissible.

--Cornelia Vismann, Files: Law and Media Technology, 56-57

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.

Further Preliminaries

In order to grasp why the secrecy of the law requires an oblique psychoanalytically inflected deconstructive analysis from the perspective of cinema, we must first put deconstructive pressure on the positivist and historicist assumptions of the rule of law and secrecy in general. The transmission of information through recording media, especially in its current digital form, may be at odds with media transparency, which is nothing more than a mirage called up by the computer screen interface. As Andrew McNamara and Peter Krapp write, “the medium is too often assumed to be a transparent phenomenon that simply transmits meaning from one place to another without delaying or transforming the intended meaning. In political discourse, transparency is an important issue because it goes together with accountability as a central tenet of liberal democracy and the rule of law. Is it merely perverse, then to stress ‘opacity’ as an equally fundamental feature in examining the role of media?” (2002, 442).3

In her book Files: Media Technology and Law, Vismann points out even more pressing problems with the law’s administration of the recorded truth, however transparent, through file storage in her book. “The law,” she writes, “operates not in mundo but in the medium of literality; it believes only what is written—more precisely, what it itself has written down. This is the highly effective mechanism of public belief (publica fides) in minutes. With the compilation of a file, a truth attains a common status; it becomes generally valid” (2008, 56). Files became necessary in European law, she shows, because records were multiple, not single, and hence were open to manipulation:

Whatever was preserved in files for subsequent reuse had to remain legible and therefore to be neither crossed out nor written on erasable slates or scraps of parchment. But once erased was itself erased, the hierarchy of textual stages, according to which a single original presides over and legitimizes copies, breaks down. . . .The preserved drafts could be retroactively altered. Parchment erasures or pencil-written drafts allow for countless undetected corrections that leave scarcely visible marks . . . . Whenever drafts are collected, files come about. (2008, 92)

Vismann adds the crucial observation that “the erratic side of the law—the administrative operations, the transmission medium itself—remains a blind spot for legal history” (75), pointing out that “it is not until the beginning of the twentieth century that files turned into an object of historiography” (75). 

In addition to an undeconstructed account of media (transparency is transparently opposed to opacity) and the (organized or disorganized) administration of law through files, positivists and historicists depend on an undeconstructed, idealized account of the archive. In Archive Fever: A Freudian Impression (1995), Derrida maintains that there is always a remainder, an ash of the archive that cannot be archived. Along similar lines, Peter Krapp, says that the “question of the archive is not reducible to memory . . . . There is a need for a memory of the archive, as well as for the separation of the archive form cultural circulation. . . . for media theory, memory is not associated with presence but with absence, and forgetting not with loss, erasure or omission but with the hidden” (2001, 47; 48).

Along similar lines, Vismann conceptualizes the archive as an object of desire: “Files are the mirror stage of any administration,” she writes. “Subsequently they become the object of desire for a positivist historiography that uses files to deduce their administrative as well as their political background” (2008, 92). The archive as object of desire produces an irresolvable problem of narrative closure both for the historian and for the citizen. In her discussion of the release, shortly after the reunification of Germany in 1989, of the Stasi files (the East German secret police) to former citizens of the now non-existent GDR, Vismann writes that “the right of access to one’s records, Stasi files . . . can be used for purposes of self-enlightenment in much the same way as keeping and reading a diary.” A German Government clerk read the file before releasing it the person who requested the file and decided which parts could or could not be released and read. The clerical reading and releasing of files produced uncertainties in their reception. Vismann writes, fueled “the suspicion that the legible file is nothing but an inferior secondary text lacking the truly important pages. It does not contain the whole life. . . . one’s own story turns out to be illegible, something that can only be found in the complete file.” The file became, in the viewer of the person reading her or his file, an envelope that “attract[ed] all kinds of phantasms” (156). Instead of producing complete, whole stories, then, the files produce neither biographies nor autobiographies, just some of the materials for them. The imaginary of the archive produces what I call “secrecy effects”: The release, or revelation of the unredacted files comes with spectral back ups, faux-similes of records that have either been destroyed or are still secretly being kept off the record. These paranoiac effects are endless and uncorrectable mis/recognitions of what is secret and what is not. Germans who got their Stasi files lived out their living deaths as a kind of declassification of state secrets by making it impossible for citizens to determine whether they had all the necessary papers to write their own autobiographies.

Finally, positivists and historicists assume that both fiction and testimony and life and death are conceptually mutually exclusive sets of terms: fiction is either outside the law, of, if found in the legal archives, waiting to be reconstructed as a true story, as history, by historians; similarly, only the living can testify, and testimony is to be given in person by the witness in court. Derrida deconstructs these seemingly obvious distinctions in careful close reading of Maurice Blanchot’s possibly autobiographical short story The Instant of my Death, in which the narrator narrowly escapes execution in Nazi-Occupied France. Derrida maintains the law must proceed on the assumption that testimony is given by a fully present living person. “For to testify,” Derrida writes, “the witness must be present at the stand himself, without technical interposition. In the law, the testimonial tends, without being able to succeed in this altogether, to exclude all technical agency. One cannot send a cassette to testify in one’s place. One must be present, raise one’s hand, speak in the first person and in the present, and one must do this to testify to a present, to an indivisible moment, that is at a certain point to a moment assembled at the tip of an instantaneousness which must resist division. If that to which I testify is divisible, at that moment it is no longer reliable, it no longer has the value of truth, reliability, or verifiability that it claims absolutely” (2000, 32-33). The law maintains its indivisibility, deliver a stable referent (“the record”) and the unmediated, absolute truth, by absolutizing differences between separate media, moments, and spaces. Only then may the gathering of evidence proceed in an orderly fashion that moves linearly from eyewitness testimony, to inscription, to transcription, and so on, and, when assembled, given a sequential narrative structure.

In practice, however, the law self-deconstructs positivist and hisotircist assumptions about it, actually delivering the referent as both spectral effects and truth effects, sometimes making to impossible to distinguish between them. Consider again Vismann’s example of the released Stasi files. Former East Germans wondered if they had received their complete dossiers, Vismann observes, because the bureaucratic workings of the law that enabled the release their files could never be made visible; conversely, referent effects that have absolute truth-value are produced in the law by their concealment, not by the materiality of an original document. Whether or not they have been lost or destroyed is of next to no account. Secrecy is internal, not external to the operations of the law and hence is not reducible to individual secrets. Conspiracy theories about particular secrets are not by-products of the law but effects produced by secrecy of the law.
I rather believe the idea came to me one day in the Bibliotheque Nationale when I was reading an internment register drawn up at the very beginning of the eighteenth century.

--Michel Foucault, "Lives of Infamous Men," (76)

Unless being able to read makes the law less accessible still. Reading a text might indeed reveal that it is untouchable, literally intangible, precisely because it is readable, and for the same reason unreadable to the extent to which the presence within it of a clear and graspable sense remains hidden as its origin. Unreadability thus no longer opposes itself to readability. Perhaps man is the man from the country as long as he cannot read; or, if knowing how to read, he is still bound up in unreadability within that very thing which appears to yield itself to be read. He wants to see or touch the law, he wants to approach and “enter” it, but perhaps he does not know that the law is not to be seen or touched but deciphered. This is perhaps the first sign of the law’s inaccessibility or of the delay it imposes on the man from the country. The gate is not shut, it is “open as usual” (says the text), but the law remains inaccessible.

--Jacques Derrida, “Before the Law,” 197

I withdraw into the secret of irony . . . But here is yet one more turn, and it is political: is it not also democracy that gives the right to irony in the public space? Yes, for democracy opens the public space, the publicity of the public space, by granting the right to a change of tone (Wechsel der Toene), to irony as well as fiction, the simulacrum, the secret, literature, and so on. And, thus, to a certain nonpublic with within the public, to a res publica, whether the difference between the public and the nonpublic remains an indecidable limit.

--Jacques Derrida, Rogues: Two Essays on Reason, 91-92

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