The power of the state of exception

It saddens me to hear Americans speak of their country as a paragon of freedom governed by the rule of law. It is possible that it once was. However, it is clear that the United States is no longer a free country. It is only free to those who put their heads down and keep quiet.

In 1922, Carl Schmitt wrote Political Theology, where he outlined his ideas on the state of exception. Schmitt advocated that the sovereign, defined as he who decides the exception, should be vested with extraordinary powers to deal decisively with an extreme emergency. If the state, and democracy, are in jeopardy, Schmitt believed, the sovereign should take control until the situation is defused. Schmitt erroneously believed, however, that the sovereign would restore democracy when conditions were reasonable to do so. It is perhaps for this reason that Schmitt enthusiastically supported Hitler during his rise through the chaos of the Weimar Republic and the totalitarianism of the Third Reich, including the political murders of the Night of the Long Knives. In a democracy, the sovereign is supposed to be the people. The people have the power to bring down governments, start wars and approve of virtually anything in their name. In the US, the terrorist attacks of September 11, 2001, led Americans to turn their power over to their government to keep them safe.

Elites frequently try to create a state of exception in order to use emergency powers. Sometimes, of course, they do not need to. The sight of two airplanes hitting the World Trade Center was so shocking that most Americans threw their hands up and cried out for a strong government to take over. As we now know, planning for a war in Iraq had begun before 9/11, so the US government could proceed to put its plan into action.

Since 9/11, the US government has blatantly flouted its own rules. Take the abrogation of the Bill of Rights with the USA Patriot Act. The government assumed greater power to spy on and detain its own people. The Patriot Act has not yet been repealed. Though such laws should only be enacted during a state of exception, the US government has done its best to prolong the state of exception through war and the creation of enemies, and keep everyone scared. Few Americans even question the Patriot Act anymore, perhaps because doing so might land them in jail.

In the course of the war in Afghanistan, the US locked up hundreds of “unlawful combatants”, a term deliberately chosen by the Bush administration because it fell into a legal grey area. The phrase does not appear in the Third Geneva Convention, which means that, unlike, say, prisoners of war, those designated unlawful combatants have no legal recourse. The Fourth Geneva Convention requires that anyone captured in war be protected and eventually charged. These are laws that the US helped craft for its own benefit. After all, if other states follow these laws, Americans are treated better by their enemies. But in a state of exception, laws go out the window. According to journalist Andy Worthington, there are still 174 inmates at Gitmo, 90 “approved for transfer”, 33 recommended for trial, and 48 still there indefinitely.

The intervention in Afghanistan was legally permissible. The UN Security Council acknowledged the US’s right to self defense with Resolution 1368. However, international law also bars indiscriminate use of bombs that do not attempt to hit specified enemy targets. It is all right to bomb what one strongly suspects is a military or terrorist stronghold, but many of the bombs dropped on Afghanistan targeted heavily populated civilian areas. Over three thousand Afghan civilians were killed in the first six months of that war. Most American citizens did not question the bombs and the dead people, because they saw that whole part of the world, wherever it was, as deserving of retribution.

Next came Operation Iraqi Freedom. Iraqi Freedom was not approved by the Security Council and was a wholly illegal war. It was an act of aggression, which is ius cogens, universally accepted as law and permitting no derogation. In case you have forgotten Abu Ghraib and CIA waterboarding (see more here), torture is also ius cogens. Extraordinary rendition, in which the UK’s and Canada’s governments also participated, and which seems like the kind of legal term or political euphemism that makes the average person turn the page, is abducting and transferring someone without trial to somewhere they might be tortured. The practice may still be going on. Government secrecy has made it almost impossible for us to know the truth.

We are aware, nonetheless, that the wars and violence in Iraq and Afghanistan continue. Pakistan has become the new frontier in the fight against terrorism, with drone attacks increasing under Barack Obama and killing 54 this past week. The war in Pakistan is an undeclared war, making it also illegal. After seven years of violence, the president announced in March 2009 the administration’s goal in the AfPak war: “to disrupt, dismantle, and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their return to either country in the future.” It is likely that special interests want a US presence to safeguard the building of oil pipelines through Afghanistan and the mining of the trillion-dollar mineral deposits under Afghan soil. So confident is he that the ongoing state of exception will vindicate him, Barack is free to continue drone strikes (which occupy something of a legal grey area; they may be legal if they can actually be shown to be used in self defense) and still not formally declare any kind of war in Pakistan (which is not grey at all) because the only ones who can truly stop him only receive a few soundbytes about it a week on TV.

Another practice that has not abated is illegal detention of Americans. Just this week, 131 peaceful antiwar protesters were arrested outside the White House, guilty of nothing more than voicing disagreement with their government. No less depressing is the state of Bradley Manning, stuck in solitary confinement for leaking documents that compromised the US’s and other governments’ ability to hide their crimes. Manning has not been charged; he has no access to the outside world; he is not let out of his cell for more than an hour a day and cannot exercise in it; nor does he have even a pillow or sheets. Psychological studies find prolonged solitary confinement highly destructive to the brain, with effects including “overwhelming anxiety, confusion and hallucination, and sudden violent and self-destructive outbursts”. The effects of such solitary confinement are not far from those of torture. According to lawyer and author Glenn Greenwald, the government is extremely concerned about leaks, and torturing those who do what concerns you is a brilliant way to prevent it. Bradley Manning, like Julian Assange, is being made an example of. Criminalising the publishing of classified information is akin to banning investigative journalism. But the US officials that ordered and approved of locking up Bradley Manning, along with the cutting up of the Bill of Rights, the illegal war, the bombing of civilians, the torture and the indefinite detentions, will never see a courtroom.

In a world where chaos is inevitable, we cannot let fear permit our worst behaviour and legitimise anything the government does. There are going to be more disasters, more terrorist attacks and more wars. We must not lose our heads and let them take our freedoms when no one has the right to take your freedom. How can we trust the government on anything? If the government does not follow its own laws, why should the rest of us? We should attempt to free ourselves from the arbitrary force of governments, and deny them the chance to take our freedom.

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5 Responses to “The power of the state of exception”

  1. The Rule of Freedom Says:

    A look at how 9/11 turned the US into something it should have hated–>http://reason.com/blog/2011/05/02/osama-won

  2. Menso Says:

    Anwar al Awlaki, an American citizen, was assassinated by the US government without due process–>http://politics.salon.com/2011/09/30/awlaki_6/singleton/

  3. Menso Says:

    The war in Libya–>www.foreignpolicy.com/articles/2011/10/25/libya_international_law_qaddafi_nato

  4. The strongest police state in history: We are all terrorists now « The Rule of Freedom Says:

    […] you in one of its many prisons (and not just ones you have heard of), as it already has with Bradley Manning and foreign journalists (Barack may be even worse than Bush with regard to torture); and can […]

  5. The strongest police state in history: We are all terrorists now « The Menso Guide to War, Conflict and World Issues Says:

    […] you in one of its many prisons (and not just ones you have heard of), as it already has with Bradley Manning and foreign journalists (Barack may be even worse than Bush with regard to torture); and can […]


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