December 28, 2005
On the US national security state's domestic surveillance by the National Security Agency. What justifies this kind of power over citizens in a liberal democracy? Where is the constitutional legal grounding?
Nick Anderson
The background is here. It is an attempt to ensure that the head of state is invested with absolute power. George H.W. Bush's attorney general William Barr according to the Washington Post, contends:
"The Constitution's intent when we're under attack from outside is to place maximum power in the president, and the other branches-and especially the courts-don't act as a check on the president's authority against the enemy."
The Bush administration contention is that the president's power as commander in chief during wartime puts him above the law. Wartime is now. The legal reasoning for this is that as the Constitution makes the president the "Commander-in-Chief," so no law can restrict the actions he may take in pursuit of war, including torture or surveillance.
This indicates that power as sovereignty is still important, and that power is not primarily a question of biopolitics as Foucault maintained; sovereignty is the mark of the state of exception. This mark discloses the dialectic between the powers of the President and Congress and the conflict over supreme authority in an emergency situation.
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