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Bush's 'state of exception' « Previous | |Next »
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.

| Posted by Gary Sauer-Thompson at 1:57 PM | | Comments (4)
Comments

Comments

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.


Cameron,
good to see you reading Agamben. The state of exception, is an elusive text isn't it, apart from the key idea that you mention above--the state of exception has become the rule.

Re your puzzlement. A state of exception is based on an emergency.An example of it being a part of law or the legal system is the classical Roman example of emergency powers, suspending normal government, and giving the emergency powers to a special person for the duration of the emergency.

Once the emergency is over the constitutional dictatorship is supended and normal republican government returns. A dictator would continue to remain in power. Another example of necessity and temporariness would be the declaration of martial law.

Agamben points out that there is no real theory of the state of exception apart from an awareness that it is situated in a borderland in an ambiguous zone. He highlights the division between those legal scholars who seek to include the state of exception within the sphere of the juridical order and those who consider it to be something external--extra juridical.

He argues that the inside/outside distinciton is too simplistic and thatwe should think in terms of a threshold or zone where inside and outside do not exclude one another but blur into one another.

Agamben argues tha the most rigorous attempt to construct a theory of the state of exception is Carl Schmitt in Dictatorship and Political Theology. He does it around the idea of sovereignty--"sovereign is he who decides on the state of exception".

Gary, Yeh it isnt really a self-contained work as he spends time arguing with Schmitt. Which can be confusing for neophytes.

But he is talking about an executive being outside of legislative authority and judical oversight - which is essentially arbitrary government. That is tyranny. One of the arguments that I make on SSR is that tyranny doesnt have to be absolute, just insidious. And we see the insidious form of tyranny, or abitrary government, being embedded in bills in Australia.

Constitution and democracy have enforced new theatres of legitimacy on tyrants too. Even popularly elected ones who seek absolute power while they are in. Kennett is a good example, going after the ombudsman even though he had control of everything else.

The state of exception is a means to obtain absolute power while still maintaining the trappings and legitimacy of constitutional democracy.

Suharto, Hussein, Mugabe - all of them hold/held elections. Suharto ended up dying by that sword. Hussein and Mugabe didnt. Even though are what we could traditional tyrants/dictators, they still had to maintain the impression of democracy for domestic and international legitimacy.


I agree with him though, that it needs to be formally recognized - and most likely the next innovation in liberal democracy will have to counter it.

Cameron,

you mention dictators --ie., non-liberal regimes. The more interesting case is the liberal democracies that embrace the state of exception, such as the Weimar Republic in the 1930s.

That Republic used to be seen as weak; German liberalism was fragile or the Nazi's were real bad. What was commonly overlooked was the embrace of the state of exception by a liberal democracy, that then became a dictatorship.

What was once an isolated example in special circumstances in the early 20th century is now seen as a general trend amongst liberal democracies. The state of exception is the norm after 9/11.

Schmitt is important because he understood the history of the state exception, saw it happen, recognized the significance, and started thinking about it in terms of legal and political philosophy.

In the process he detailed the weaknesses of liberal democracy.So you can see why Schmitt is persona non gratia for liberals.

He argued that that the state of exception was legal in terms of the Constitution of the Weimar Republic he who decides the exception stands outside the juridical order of the constitution and yet belongs to it.

It's the argument being advanced by President Bush in the US, is it not?