March 15, 2006
I though that 'the state of exception' as a state of emergency that suspends the law was an idea that belonged to the rarified world of political theoriests, such as Carl Schmitt and Giorgio Agamben. Yet here we have it being openly discussed in the US by Mark Danner over at TomDispatch in the context of 9/11.
Danner says:
When you look at the record, the phrase I come back to, not only about interrogation but the many other steps that constitute the Bush state of exception, state of emergency, since 9/11 is "take the gloves off." The interesting thing about that phrase is the implication that before we had the gloves on, that the laws and principles that constitute our belief not only in democracy but in human rights left the country vulnerable. The U.S. adherence to the Geneva Convention, the U.S. record of treating prisoners humanely that goes back to George Washington, laws like the FISA law passed to restrict the government's power to surveil its citizens -- all of these constitute the gloves on American power and 9/11 signaled to those in power that the system with "the gloves on" was insufficient to protect Americans. That seems to be their belief.
Danner adds that the federal statutes against torture by the U.S represented restrictions that would hobble the the USA in fighting the war on terror and, by extension, threaten[ed] the existence of the United States. So they had to be removed. Hence torture -- now termed "extreme interrogation" -- goes to the heart of the reaction against the way this country has observed human rights in the past, a reaction in a way against law itself. This represents a conflict between legality and power.
Danner adds something interesting--- the state of exception is becoming the normal. He says:
In what I've started to call Bush's state of exception, we've now reached the second stage. Many of these steps, including extreme interrogation, eavesdropping, arresting aliens -- one could go down a list -- were taken in relative or complete secrecy. Gradually, they have come into the light, becoming matters of political disputation; and, insofar as the administration's political antagonists have failed to overturn them, they have also become matters of accepted practice, which is where I think we are now.
Danner says that the President claims that his wartime powers give him carte blanche to break the law in any sphere where he decides national security is involved.
So where is the countervailing power after 9/11tot he dominant executive that has supended the law? Danner says it lay in the June 2004 Supreme Court detention decisions. In one of them, Justice O'Connor declared that the President's power in wartime was not a blank check. Now, she's been replaced by Samuel Alito, an admitted defender in a "unitary executive", who when he was at the Justice Department, strongly pushed the strategy of presidential signing statements as a way to mitigate congressional assertions of power.
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When I read Agamben's book where he was arguing the state of exception has become a model of government, I couldnt help thinking that it was the innovation of the formal Constitution which forced this. Prior to constitutional limits on executive/legislative power, rulers could essentially act in an arbitrary manner toward their subjects.
The Constitution changed that dynamic, and this state of exception is the response to it.
Agamben also argued that it was different to dictatorship, which acts outside the law, whereas a state of exception is the absence/poverty of law.
I am not certain I get that difference entirely.