Can a State of Exception be Permanent?
posted by Frank Pasquale
Former Republican Representative Bob Barr has an interesting perspective on privacy at The Economist’s new feature, Debate Hall. As Chair for Freedom and Privacy at the American Conservative Union, he believes that “emergency suspensions” of liberties should be viewed with suspicion:
Some might take solace in the siren argument of a [president] that whatever encroachments on our privacy are necessary in order to meet the challenges posed by terrorists should be acceptable because they are temporary—like the encroachments suffered in earlier crises including the American civil war, or the first or second world wars. However, to accept such an argument in the face of how Mr. Bush and the architects of his current strategy describe the present situation, is foolhardy. To these purveyors of government power, the “global war on terror” in which we are enmeshed is indefinite . . . .
Liberal Anthony Lewis has made a similar point while promoting his new book on the First Amendment:
[P]ast episodes [of civil liberties' violation] . . . had one salutary aftermath. That is, after each one we apologized. We realized we, the American people, on the whole, or politicians and judges, realized that the reaction to the fear had been overdone – for example, in the case of the removal of Japanese-Americans from the west coast during World War II. Eventually Congress passed an apology and a modest payment to the survivors.
But where we are now, what’s disturbing about the war on terror is that it’s hard to see when that’s going to end, when we can look back at it, because, you know, the terrorists are not going to come aboard the United States Battleship Missouri, as the Japanese did at the end of World War II, and surrender. They’re not going to do that, and it’s going to trail on and on.
Both Barr and Lewis reminded me of the following reflections on Giorgio Agamben’s theory of the “state of exception:”
[W]henever we try to create a regular system of rules between law and life, we inevitably find ourselves confronted with exceptional circumstances — religious, military, financial or other — that our rules have not anticipated, and that make it difficult to apply them with efficacy. State of exception, state of necessity, emergency decree, state of siege, martial law or emergency powers, are all devices for responding to the presence of some extra-legal force — financial chaos, military threat, natural disaster — which interferes in the state’s functioning. The existing system for applying law (courts, legislature, due process, habeas corpus) is then suspended. What ensues is not anarchy. In fact, the emergency gives the law new force and range to neutralize whatever external threat has penetrated its borders. The exception always responds to some absolutely unique crisis, but each time it reveals the same problem of the state’s fragile relations to the conditions in which it operates. “Sovereign is he who decides on the exception,” [Carl] Schmitt writes, because authority lies in the ability to decide when these circumstances are so exceptional that the normal rules no longer apply.
The exception then, like the parasite, is not some occasional problem that sometimes interrupts the otherwise normal progress of politics. It is the precondition, the prior term, around the exclusion of which the law is organized. The founding gesture of law is to produce a mechanism to anticipate and contain the exceptional circumstance. Just as noise is the secret of communication, so is the state of exception the Arcanum imperia (secret of power) because it reveals the medium in which law operates.
As another commentator has noted, Schmitt had an important role not only in the philosophy of law, but also in practical politics:
As the “crown jurist” of Germany in the thirties, Schmitt is famous for a number of flashes of dark lawyerly brilliance that supported the deconstruction of the Weimar Republic and hastened the rise of an authoritarian, and then totalitarian dictatorship. One of these was the use of external threat to justify a “state of exception,” followed by a transposition of the external threat to the internal political dynamic. This was done with a purpose: collapsing the careful allocation of powers in the Weimar Constitution in favor of one all-powerful Leader.
These historical reflections indicate the importance of work’s like Bruce Ackerman’s The Emergency Constitution, which, as Martha Minow notes, makes these contributions:
(1) anticipating fear and overreaction to terror; (2) developing concrete plans that could be valuable in a crisis and could sharpen the public’s sense of priorities; (3) predicting the long-term consequences for our constitutional democracy from short-term responses to terrorism; (4) subjecting all of the government’s policy initiatives regarding terrorism to constitutional analysis; and (5) rejecting “war” and “criminal justice” as the legal justifications for the United States’ responses to terror.
Those in the ideological spectrum ranging from Barr to Lewis might welcome such an approach. . . .and perhaps also those worried by the dystopia limned in the film Children of Men.
February 13, 2008 at 9:26 am
Posted in: Constitutional Law, Privacy
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Responses (1)
Samir Chopra - February 13, 2008 at 7:20 pm
Frank:
Interesting post. When I saw the title, I wondered whether you were going to reference Agamben, and sure enough you did. There is one problem with Agamben’s analysis that I found when reading him. Agamben seems to think “law” is synonymous with “civil rights”. He speaks constantly of “law” suspended in the “state of exception” but what he refers to are things like due process in some instances, particular liberties, and the like. He clearly does not seem to think that divorce law, bankruptcy law, the laws of wills, estates, trusts or contracts or torts are suspended. Thus his constant invoking of legal theorists in speaking of Law with a capital L as being the entity that is suspended in the “state of exception” is a bit strange. (i.e., he seems to think he is making an ambitious claim about how Law is rendered invisible in this state of exception, but all he seems to be saying is that a *part of it* can be). Is this such a radical notion?
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