Congress & Giorgio Agamben's State of Exception

On Capitol Hill, the Senate has agreed to give President Bush extraordinary power to detain and try prisoners in the so-called war on terror. The editors of the New York Times described the law as tyrannical. They said its passage marks a low point in American democracy and that it is our generation’s version of the Alien and Sedition Acts. The legislation strips detainees of the right to file habeas corpus petitions to challenge their own detention or treatment. It gives the president the power to indefinitely detain anyone it deems to have provided material support to anti-U.S. hostilities. Secret and coerced evidence could be used to try detainees held in U.S. military prisons. The bill also immunizes U.S. officials from prosecution for torturing detainees who the military and the CIA captured before the end of last year.

The Senate passed the measure sixty five to thirty four. Twelve Democrats joined the Republican majority. The House passed virtually the same legislation on Wednesday. Legal groups, including the Center for Constitutional Rights, are already preparing to challenge the constitutionality of the law in court." (Democracy Now! 09.29.06)

The Italian philosopher Giorgio Agamben, building on Hannah Arendt's insight that the Enlightenment's notion of the "Rights of Man" pretends to apply to all peoples but in practice applies only to "citizens" granted those "rights" by the State, argues in his work that the "state of exception" (or emergency) not only tends to become the norm but suggests how democracy can tend to converge towards totalitarianism.

The creation of a place (the camp) outside the law and not subject to legal procedures or citizens’ protections, and a population to fill it (the Jews), defines for Agamben the truest manifestation of the "state of exception" in which a modern state achieves full reach and authority over its whole territory and citizenry. Normally, "state of exception" is a rarely used piece of legal terminology, the German equivalent of what in England and America is called a "state of emergency," or, in France, a "state of siege"—that is, a crisis of public order in which a duly constituted authority (president, parliament, or monarch) suspends the law to save the political system itself. But "state of exception" had a particular significance in Hitler’s interruption of German law during the Nazi period, and Agamben follows the Nazi jurist Carl Schmitt’s argument, in his Political Theology of 1922, that sovereign power is in fact only ever really constituted by its ability to decide the state of exception. Agamben generalizes the condition still further. Power over "bare life"—attained by a state’s ability to designate certain places and populations as an exception to the rest, thus solidifying control over everyone—comes to be, for Agamben, the permanent precondition of all modern sovereignty.
(Mark Greif, "Apocalypse Deferred: Georgio Agamben's State of Exception")

from Agamben's "We Refugees":

It is time to stop looking at the Declarations of Rights from 1789 to the present as if they were proclamations of eternal, metajuridical values that bind legislators to respect them, and to consider them instead according to their real function in the modern state. In fact, the Rights of Man represent above all the original figure of the inscription of bare natural life in the legal-political order of the nation-state. . . . Nation-state means a state that makes nativity or birth (that is, of the bare human life) the foundation of its own sovereignty. This is the (not even very obscure) sense of the first three articles of the Declaration of 1789: only because it wrote the native element into the core of any political association (arts. 1 and 2) could it firmly tie (in art. 3) the principle of sovereignty to the nation (in accordance with its etymon, natio originally meant simply "birth"). The fiction implicit here is that birth immediately becomes nation, such that there can be no distinction between the two moments. Rights, that is, are attributable to man only in the degree to which he is the immediately vanishing presupposition (indeed, he must never appear simply as man) of the citizen.

. . . It would be well not to forget that the first camps in Europe were built as places to control refugees, and that the progression - internment camps, concentration camps, extermination camps - represents a perfectly real filiation. One of the few rules the Nazis faithfully observed in the course of the "final solution" was that only after the Jews and gypsies were completely denationalized (even of that second-class citizenship that belonged to them after the Nuremberg laws) could they be sent to the extermination camps.

Thus the attention in Congress to precise legalities of the "rights" to be applied or not to "enemy combatants." Outside the State, outside the legal protections (habeas corpus) of the State, outside the processes the State uses to put to death its citizens.

. . . it’s a terrible bill. It removes as many checks and balances as possible so that any president can basically set the law, determine what laws they’ll follow and what laws they’ll break and not have anybody be able to question them on it.

In this case, the particular section I was speaking about at that point was the so-called habeas protection. Now, habeas corpus was first brought in the Magna Carta in the 1200s. It’s been a tenet of our rights as Americans. And what they're saying is that if you’re an alien, even if you’re in the United States legally, a legal alien, may have been here ten years, fifteen years, twenty years legally, if a determination is made by anybody in the executive that you may be a threat, they can hold you indefinitely, they could put you in Guantanamo, not bring any charges, not allow you to have a lawyer, not allow you to ever question what they’ve done, even in cases, as they now acknowledge, where they have large numbers of people in Guantanamo who are there by mistake, that they put you -- say you’re a college professor who has written on Islam or for whatever reason, and they lock you up. You’re not even allowed to question it. You’re not allowed to have a lawyer, not allowed to say, “Wait a minute, you’ve got the wrong person. Or you’ve got -- the one you’re looking for, their name is spelled similar to mine, but it’s not me.” It makes no difference. You have no recourse whatsoever. (Sen. Leahy)

Agamben again:

Today we face extreme and most dangerous developments in the thought of security. In the course of a gradual neutralization of politics and the progressive surrender of traditional tasks of the state, security becomes the basic principle of state activity. What used to be one among several definitive measures of public administration until the first half of the twentieth century, now becomes the sole criterium of political legitimation. The thought of security bears within it an essential risk. A state which has security as its sole task and source of legitimacy is a fragile organism; it can always be provoked by terrorism to become itself terroristic.

We should not forget that the first major organization of terror after the war, the Organisation de l'Armée Secrète (OAS), was established by a French general, who thought of himself as a patriot, convinced that terrorism was the only answer to the guerrilla phenomenon in Algeria and Indochina. When politics, the way it was understood by theorists of the "science of police" in the eighteenthe century, reduces itself to police, the difference between state and terrorism threatens to disappears. In the end security and terrorism may form a single deadly system, in which they justify and legitimate each others actions.
("On Security and Terror")

"And then, if you are lucky enough to be tried, and I say "lucky enough," because, for example, the 460 people the Center represents at Guantanamo may never get trials. In fact, only ten have even been charged. Those people, they’ve been stripped of their right to go to court and test their detention by habeas corpus. They’re just -- they’ve been there five years. Right now, under this legislation, they could be there forever.

"Let me tell you, this bill will be struck down and struck down badly. But meanwhile, for two more years or whatever it’s going to take us to litigate it, we’re going to be litigating what was a basic right, as the senator said, since the Magna Carta of 1215, the right of any human being to test their detention in court." (Michael Ratner, President of the Center for Constitutional Rights)

One can only hope the Supreme Court proves him right. When the extra-ordinary becomes ordinary, the exception becomes the rule:

. . . the state of exception or state of emergency has become a paradigm of government today. Originally understood as something extraordinary,an exception, which should have validity only for a limited period of time, but a historical transformation has made it the normal form of governance.

. . .I spoke rather of the prisoners in Guantánamo, and their situation is legally-speaking actually comparable with those in the Nazi camps. The detainees of Guantanamo do not have the status of Prisoners of War, they have absolutely no legal status. They are subject now only to raw power; they have no legal existence. In the Nazi camps, the Jews had to be first fully "denationalised" and stripped of all the citizenship rights remaining after Nuremberg, after which they were also erased as legal subjects.
(interview with Agamben)

". . . Agamben makes the consequences of his analysis for the present moment quite explicit. The growth of the state of exception has "perhaps only today reached its full development." It is comparable, in the democracies, to the Nazi and fascist security of wartime Germany and Italy. Guantanamo Bay is indeed a "camp" in the Agambenian sense, it reduces the detainees to "bare life," and it is comparable legally only to the Nazi concentration camps." (Greif)

The place—both logical and pragmatic—of a theory of the state of exception in the American constitution is in the dialectic between the powers of the president and those of Congress. . . .

The textual basis of the conflict lies first of all in Article 1 of the constitution, which establishes that "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" but does not specify which authority has the jurisdiction to decide on the suspension (even though prevailing opinion and the context of the passage itself lead one to assume that the clause is directed at Congress and not the president). The second point of conflict lies in the relation between another passage of Article 1 (which declares that the power to declare war and to raise and support the army and navy rests with Congress) and Article 2, which states that "the President shall be Commander in Chief of the Army and Navy of the United States."
. . .

It is well not to forget that, from the constitutional standpoint, the New Deal was realized by delegating to the president (through a series of statutes culminating in the National Recovery Act of June 16, 1933) an unlimited power to regulate and control every aspect of the economic life of the country—a fact that is in perfect conformity with the already mentioned parallelism between military and economic emergencies that characterizes the politics of the twentieth century.

The outbreak of World War Two extended these powers with the proclamation of a "limited" national emergency on September 8, 1939, which became unlimited on May 27, 1941. On September 7, 1942, while requesting that Congress repeal a law concerning economic matters, the president renewed his claim to sovereign powers during the emergency: "In the event that the Congress should fail to act, and act adequately, I shall accept the responsibility, and I will act.…The American people can…be sure that I shall not hesitate to use every power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety demands such defeat." The most spectacular violation of civil rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942, with the internment of seventy thousand American citizens of Japanese descent who resided on the West Coast (along with forty thousand Japanese citizens who lived and worked there).

President Bush's decision to refer to himself constantly as the "Commander in Chief of the Army" after September 11, 2001, must be considered in the context of this presidential claim to sovereign powers in emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the state of exception, then Bush is attempting to produce a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.

(Excerpt from pages 11-22 of State of Exception by Giorgio Agamben, translated by Kevin Attell, published by the University of Chicago Press. ©2004 by the University of Chicago)

"[T]o risk advancing a prophecy here—the coming politics will no longer be a struggle to conquer or to control the state on the part of either new or old social subjects, but rather a struggle between the state and the nonstate (humanity). . . . This is the lesson that could have been learned from Tiananmen, if real attention had been paid to the facts of that event. What was most striking about the demonstrations of the Chinese May, in fact, was the relative absence of specific contents in their demands. (The notions of democracy and freedom are too generic to constitute a real goal of struggle, and the only concrete demand, the rehabilitation of Hu Yaobang, was promptly granted.)" (Agamben, Means Without End, quoted by Greif)

In 2004, Agamben turned down a teaching post at NYU in opposition to the US-Visit (US-Visitor and Immigrant Status Indicator Technology) program. He explains in "No to Bio-Political Tattooing" that:

Electronic filing of finger and retina prints, subcutaneous tattooing, as well as other practices of the same type, are elements that contribute towards defining this threshold ["the progressive animalization of man which is established through the most sophisticated techniques"]. The security reasons that are invoked to justify these measures should not impress us: they have nothing to do with it. History teaches us how practices first reserved for foreigners find themselves applied later to the rest of the citizenry.
. . .

These technological devices that register and identify naked life correspond to the media devices that control and manipulate public speech: between these two extremes of a body without words and words without a body, the space we once upon a time called politics is ever more scaled-down and tiny.

Thus, by applying these techniques and these devices invented for the dangerous classes to a citizen, or rather to a human being as such, states, which should constitute the precise space of political life, have made the person the ideal suspect, to the point that it's humanity itself that has become the dangerous class.

Some years ago, I had written that the West's political paradigm was no longer the city state, but the concentration camp, and that we had passed from Athens to Auschwitz. It was obviously a philosophical thesis, and not historic recital, because one could not confuse phenomena that it is proper, on the contrary, to distinguish.

I would have liked to suggest that tattooing at Auschwitz undoubtedly seemed the most normal and economic way to regulate the enrolment and registration of deported persons into concentration camps. The bio-political tattooing the United States imposes now to enter its territory could well be the precursor to what we will be asked to accept later as the normal identity registration of a good citizen in the state's gears and mechanisms. That's why we must oppose it.

~

so to be reminded once again of Puddin'head Wilson: It was wonderful
to find America but it would have been more wonderful to miss it

this unified mankind - for that's who's there, quantity or lump, at the end of a materialist's or an idealist's history - conceived, Mayer writes, as a homgenized humanity. Woe to outsiders

so that was it, was it? an Enlightenment that promised equality to men and
women, including homosexuals!    an age in the hole, running three
centuries, surely allows one to say, 'Listen you assholes, a metaphysical
wipeout means you've lost your top soil'

(Robin Blaser, from "Even on Sunday," The Holy Forest - he can be heard reading the poem on this Naropa recording)