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Draft - Not for quotations without author`s permission The Borders of Corruption: Living in the State of Exception

Rebecca Fiske Bard College at Simon’s Rock

rfiske@simons-rock.edu July 2014

Keywords: State of Emergency, Arcana, Emergency Decree, State of Siege, Martial Law,

Executive Decision, Derogation, Force of Law, Corruption, Benjamin, Schmitt,

Agamben.

Abstract

The U.S. has been in a state of exception now for many years, and there appears to be no

end in sight. There exists an entire generation who has know life under only this form of

government, one that, as Giorgio Agamben explains, takes “a position at the limit

between politics and law…an ambiguous, uncertain, borderline fringe, at the intersection

of the legal and the political.” In the name of security, the characteristic limiting of

constitutional rights, the sanctioning of torture, and the proliferating of NSA surveillance

are fast becoming the norm. Recently, much has been written concerning the bio-political

consequences of an endless state of exception in which the executive power trumps the

judiciary, and a new legal order emerges. This paper will consider the relationship

between corruption and the permanent state of exception.

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While the U.S. has been in various states of emergency since its beginning, the

conflicts in the middle east - and especially since September 11th, 2001 - have resulted in

a substantial increase in these emergencies. For example, on May 19, 2014, President

Barack Obama renewed the National State of Emergency that was instituted by President

Bush at the start of the Iraq war in 2003.This continuation is one of thirteen annual

notices of limited emergency states published in the Federal Register so far. There appear

to be twelve more in the queue, including the crucial Continuation of the National

Emergency With Respect to Persons Who Commit, Threaten To Commit, or Support

Terrorism, originally declared in 2001. By executive order, each limited state of

emergency comes equipped with presidential directives. Some of these appear to

compromise civil liberties and, thus, represent an abuse of power. The philosopher

Giorgio Agamben writes that such emergency rule employs “ juridical measures that

cannot be understood in legal terms…at the limit between politics and law” (Agamben 1).

This paper will explore the history of emergency rule and the bio-political consequences

of governing in a continuous state of exception.

The concept of emergency rule has a number names, each with its own history

and nuance: the Germans tend to favor State of Exception, the French and Italian -

Emergency Decree or State of Siege, and the Anglo-Saxons - Martial Law or Emergency

Powers. The terms all connote situations in which state power legally withdraws rights

and entitlements during exceptional situations. However, only the German term, State of

Exception, seems adequate for the particular investigation of this paper. Emergency

Decree, State of Siege, Martial Law and Emergency Powers all connote war and a

temporary, lawful reaction to it. State of Exception expresses the “suspension of the

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juridical order itself; it defines law’s threshold or limit concept” (Agamben 4). When a

State of Exception is declared, the law allows lawlessness. But, how does the juridical

order withdraw itself when necessity requires the suspension of core human rights, for

example? How could such anomie inhabit a juridical system? One way to explore these

troubling questions is by considering the State of Exception in its historical context.

The political “arcanum” or “secret” is one of the earliest forms of this concept,

according to the theorist Carl Schmitt, whose text Dictatorship was the first devoted

entirely to the examination of emergency powers. Arcana have been used at least since

Tacitus described the ingenious politics of Tiberius in the first century CE. Tiberius’

“arcana imperii” his “secrets of state power” and his “arcana dominationis” his “secrets

of rulership” worked together to maintain his ultimate power. Secrets of state power were

those that kept the people pacified, by “conjuring the impression of freedom, simulacra or

decorative occasions.” But secrets of rulership were powers “concerned with the security

and defense of rulers in extraordinary events.” They were understood as the necessary

means of any government of the state. These two types of arcana were directly opposed

to the “iura imperii”, the right to pass laws, and the “ iura dominationis”, the right to rule.

The right to pass laws and the right to rule, the iura, were finite and could not be hidden.

They were public, in full view. Conversely, the arcana were those hidden plans and

practices that helped to maintain the distinct right of sovereignty. According to law, in

situations of emergency, the sovereign was first bound to divine law, “ius divinum.”

Divine law was superior to man-made law and in fact was the constituting force that

allowed human beings to form lesser laws. The sovereign thus had ordinary rights, based

on man-made law, and he had extraordinary rights, based on divine law. Since only the

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sovereign had access to the constituting force of the divine, only the sovereign could

know when and in what manner divine law should be invoked. Written within human

law, then, was the law of exception giving the sovereign the right to declare an

emergency situation, to disregard aspects of man-made law, and to follow divine law,

known only via arcana dominationis, the secrets of rulership.

Human laws were constituted based on the constituting power of divine law;

when humans faced emergency situations that threatened to destroy the state, their only

recourse was to the original law-makers, the divine, and their only conduit was the

sovereign. The sovereign, then, held ultimate power since he was the one who could

declare the state of exception and invoke the secret powers of divine law. One such

example was the iustitium edict issued in dire situations such as the one Cicero warned

against in a speech before the senate in 56 BCE. During the iustitium, the administration

of justice could be suspended, the treasury closed, and the courts pushed out of the way.

In this particular instance at least, the dire situation was the wrath of the gods because of

bad omens and profanation, not threat of war or other tumult.

Images of the sovereign as a conduit for divine law are plentiful enough: the Code

of Hammurabi, Mosaic Law, Canon Law and Sharia all based their juridical power on the

constituting power of the divine. The existence of divine law allowed for the perception

of original law, of true law, of law beyond even the law of reason or nature, and certainly

beyond any human-made positive law. The sovereign must have at least appeared to fear

divine justice. Consider God’s punishment of Moses when he struck the rock at Horeb or

Antigone’s chastisement of King Creon when he failed to bury her brother. Even Tiberius

seemed to fear the gods when he swore: “may the gods ruin me more horribly than I feel

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myself dying everyday"(Tacitus 6.6). The law of exception was a gate, the sovereign the

gatekeeper, and the divine was at its threshold, ever waiting.

However, with the rise of the West, theology’s power was not so fearsome, and,

eventually, “the patriarchal understanding of the origin of kingship no longer satisfied”

the people (Schmitt 10). Politics began to develop as a sort of science, with its own

political and diplomatic arcana. Schmitt offers the following example from the

seventeenth century. During the Thirty Years Wars, Michael Breuner of Gotha gave Lord

Maximilian von Bayern a list of arcana of war, military tricks such as a devise that shot

bullets without gunpowder and various innovative stratagems of war. In this way, the

power of the sovereign, his political and diplomatic arsenal, derived from his secrets of

fabrication, his “stratagems of war” and his “military tricks” rather than from divine law.

The sovereign’s arcana sprang out of necessity; and, “necessity has no law.” Schmitt

refers here to the father of Natural Law, Hugo Grotius and his seventeenth century text on

common law, Decretum. “If something is done out of necessity, it is done licitly, since

what is not licit in law necessity makes licit. Likewise, necessity has no law” (Agamben

24). In other words, when the sovereign is faced with an emergency, he must – out of

necessity – deploy his arcana, which sprung not from the divine source but from

immediate threat. When human law failed to secure the safety of the state, it was non-

binding, and the sovereign’s secret power was the only defense. Similarly, John Locke’s

1690 Two Treaties of Government expressed the concern that law was not equal to the

task of governing during crisis: “since many accidents may happen, wherein a strict and

rigid observation of the laws may do harm…'tis fit the ruler should have a power, in

many cases, to mitigate the severity of the law, and pardon some offenders: for the end of

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government being the preservation of all, as much as may be, even the guilty are to be

spared, where it can prove no prejudice to the innocent” (Locke 84).

Even earlier, in the sixteenth century Italian text Discourses of Livy, Niccolo

Machiavelli advised the sovereign to break laws that proved useless in the face of

necessity, since customary orders in republics are slow and therefore dangerous, given

the requirement to have consensus. When “urgent needs” arose, the sovereign should

make decisions, without further consultation. “For when a like mode is lacking in a re-

public, it is necessary either that it be ruined by observing the orders or that it break them

so as not to be ruined…I say that those republics that in urgent dangers do not take refuge

either in the dictator or in similar authorities will always come to ruin in grave accidents.”

He makes clear that governing in this “extraordinary mode” is risky, “for if one sets up a

habit of breaking the orders for the sake of good, then later, under that coloring, they are

broken for ill.” (Machiavelli 19). Machiavelli continued that in a perfect state, there

would be a law to provide for every contingency and there would never be the problem of

necessity. In a perfect state, the only law missing would be the law of exception, the

lawless law. But, there is no perfect state, no set of earthly, absolute laws. So, the law of

exception, which breaks law, was the only recourse in the face of necessity. The law of

exception was still a gate, the sovereign still the gatekeeper, but what was at its threshold,

ever waiting?

Perhaps it doesn’t matter. Practically speaking, both ancient, divine arcana and

medieval/early modern political arcana had equal force. Both gave the appearance that

the sovereign was the conduit for extra-juridical power. Both allowed the sovereign to

declare a state of exception, thereby suspending the laws that restricted him, and

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conferring upon himself ultimate power, whether it was imagined as the power of the

divine or as the power of necessity. Even a combination of the two sometimes proved

useful. For example, consider Oliver Cromwell, Lord Protector of the Commonwealth of

England, Scotland and Ireland. In his September 12, 1654 speech to the First Protectorate

Parliament he claimed that Necessity and God both gave him the power of the sovereign.

He claimed “The thing I drive at is this: I say to you, I hoped to have had leave, 'for my

own part,' to retire to a private life. I begged to be dismissed of my charge; I begged it

again and again; -and God be Judge between me and all men if I lie in this matter.” His

power extended even to the dissolution of parliament, and when he exercised that power

for the third time, in 1658, Cromwell declared that only God could judge him.

Cromwell’s constitution was “stirred by God,” by “a Deo excitatus,” via Necessity. As

Schmitt commented concerning Cromwell “it had been argued that dictatorship is a

miracle, on the grounds that its suspension of state laws is comparable with the

suspension of natural laws in miracles (Schmitt 10). Eerily, the great Cromwell was

judged, but not until the restoration of the monarchy, and not by God. On the twelfth

anniversary of the execution of Charles I, the new sovereign, Charles II, ordered

Cromwell’s body exhumed, chained, decapitated, and burned. The old sovereign, once

stirred by God and Necessity, was dismissed and his arcana desecrated. As Carl Schmitt

noted, “The state…is its constitution, by reason of the continuous state of exception in it,

its law is, to the core, the law of exception. Whoever rules over the state of exception

therefore rules over the state, because he decides when this state should emerge and what

means are necessary” (Schmitt 14).

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The dangers of arcana have never gone unnoticed, of course. For example, Cicero,

Tacitus, Machiavelli, Grotius, Locke, and many others all warned of them, all expressed

the general fear that military and domestic law would be conflated and corruption would

occur. An essential issue was the extent to which military law could infringe on the

home. By the end of the eighteenth century, such concerns had been fully expressed in

British law. In 1792, Grant vs. Gould, Lord Chief Justice Loughbourough ruled that the

king could only declare martial law under the authority of the Annual Mutiny Act, which

greatly limited the king’s power and would only hold sway over soldiers, never civilians.

Less than a hundred years after Locke’s Treatise of Government, martial law within the

European common law countries was very limited and not applicable to domestic law.

It is in the history of the French Revolution and the doctrine of the state of siege,

however, that Giorgio Agamben finds the taproot of the contemporary State of Exception.

He traces it back to the French Constituent Assembly’s declaration of July 8, 1791. In it,

distinctions were made among the state of peace, the state of war, and the state of siege.

In peace, the military and civil authorities were separate. In war, military and civil

authorizes acted in concert. But, in siege, “all the functions entrusted to the civil authority

for maintaining order and internal policing passed to the military commander, who

exercised them under his exclusive responsibility” (Agamben 5). Shortly afterwards, the

decree was expanded to include cities, effectively giving the sovereign the power to rule

military and civil life completely, once he declared a state of siege. As Agamben views it,

the legacy of this declaration has been the gradual shift from a wartime strategy to a

method of control in cases of internal civil disorder. It was in Article 92 of the French

constitution, 22 of Frimaire Year 8, that the ability to suspend the constitution all together

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was first introduced. “In the case of armed revolt or disturbances that would threaten the

security of the State, the law can, in the places and for the time that it determines,

suspend the rule of the constitution.” Then on December 24, 1811, Napoleon

acknowledged that the emperor could declare a fictitious or a political state of siege, even

when there were no actual attacks or direct threats by external forces. Although multiple

attempts were made to limit the power of the sovereign in a political state of siege, even

reaching into the twentieth century, the power remained substantial. During World War I,

for example, the President declared a political state of siege that lasted the duration of the

war. Currently, the French Constitution allows the executive to declare a state of siege

wherein the President may “take the measures demanded by these circumstances.” These

measures are not specified and leave the ultimate details to the discretion of the

sovereign. Although the President must consult the parliament and the Constitutional

Council, there is no requirement that he heed either’s advice, and there is no penalty for

acting against their wishes. Finally, the siege may be declared for internal or external

threats. That revolution or other domestic discord could be as threatening to the State as

actual foreign attack means both internal and external dangers were cause for exceptional

measures. The two old Napoleonic terms – state of siege and fictitious/political state of

siege, blurred together, “into a single juridical phenomenon that we call the state of

exception” [or, state of emergency] (Agamben 5).

  But,  what  are  the  consequences  of  such  a  blurring,  and  how  might  it  be  

related  to  the  authority  of  arcana?  First,  we  must  note  that  the  state  of  siege  arose  in  

times  of  revolution.  At  issue  was  how  one  constitution  was  overthrown  and  another  

created.  Who  had  the  authority  to  step  outside  of  constitutional  law  in  order  to  

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fashion  new  constitutional  law?  Under  what  “arcana  dominationis”  would  such  

power  fall?  Recall  the  metaphor  of  the  sovereign,  his  gate,  and  what  waited  at  the  

threshold.  In  divine  arcana,  a  deity  provided  the  authority  and  delegated  it  to  the  

sovereign.  The  sovereign  then  commissioned  others  to  carry  out  divine  will.  In  the  

example  of  political  arcana,  Necessity  provided  the  authority  and  the  sovereign  

seized  hold  of  it.  However,  the  nature  of  revolution  is  dissatisfaction  with  sovereign  

power  and  the  desire  to  overthrow  the  established  constitution.  How  then  would  a  

declaration  of  the  state  of  siege  be  justified?  One  of  the  prominent  theorists  of  the  

French  Revolution,  and  a  supporter  of  Napoleon  Bonaparte,  Emmanuel  Joseph  

Sieyès,  offered  a  basic  yet  effective  answer  in  his  pamphlet  “What  is  the  Third  

Estate?”  published  in  1789.  “A body subjected to constitutional forms cannot take any

decision outside the scope of its constitution. It cannot give itself another one. It becomes

null and void from the moment when it moves, speaks or acts in any other than the

prescribed forms”(Sieyes 125). His fundamental idea was that revolution could never

come from within the law because law was tethered to the constitution and could never

stray. There could never be a lawful revolution. Further, all constitutional powers were

subject to law; legal power could only follow the constitution that appointed it. Legal

power was constituted, in other words.

Outside of constituted power, at the threshold, waiting, was constituent power,

that which laid down the foundation of the constitution. Like the other arcana, constituent

power was unlimited, infinite and incomprehensible. It was not obliged to anything.

Constituent power was to constituted power as creator was to created. The former had

rights and no duties, the latter duties and no rights. Carl Schmitt commented that Sieyes’

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theory went beyond the rationalistic approach of Rousseau’s Social Contract and

Condorcet’s Right of Resistance. It was the principle that organized chaos. As Schmitt

describes the glories of constituent power, his rhetoric borders on the mystical: “From the

infinite, incomprehensible abyss of the force of the pouvoir constituent, new forms

emerge incessantly, which it can destroy at any time and in which its power is never

limited for good. It can will arbitrarily. The content of its willing has always the same

legal value like the content of a constitutional definition. Therefore it can intervene

arbitrarily…It becomes the unlimited and illimitable bearer of the iura dominationis, the

rights of rulership, which do not even have to be restricted to cases of emergency. It

never constitutes itself, but always something else” (Schmitt 123).

Further, Sieyes argued constituent power could have representatives: messengers,

angelic commissars, of a sort. He viewed the delegates of the Constituent Assembly of

1789 as such commissars. Their task was to experience the omnipotence of the

constituting will and to shape it but never to misrepresent or limit its infinite scope. Since

constituent power was formless and un-constitutionable, whatever language its

representatives chose to contain it would be imperfect. Any draft of a constitution, then,

would also be imperfect. Thus the representatives would be continuously experiencing,

continuously shaping. “Unlike ordinary representatives, the extraordinary ones – those

who execute the constituting power – can have some arbitrary authority” (Schmitt 125).

Although this theory conforms very well to the nineteenth century view of God as

an “objective ambiguity” at the center of the universe, constituent power was not God.

Rather, it was “the people.” Sieyes noted that the formation of a state (and of its

constitution) had three periods. In the first, a group of individuals wished to join forces.

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They had a common will, and that was the origin of all power. In the second period, the

original power of the individual wills joined in their common will, agreed to merge, and

formed one body: the state. In the third period, the number of individuals in the state

grew so numerous that representation was necessary and a government by proxy was

established. However, the power of the original will remained inalienable. Only that part

of the power needed to maintain order was delegated to representatives. Thus, when it

was time to change the constitution, only the constituent power of the people held sway.

The law of exception was the gate, the sovereign/extraordinary representatives were the

gatekeepers, but the people were at its threshold, ever waiting. One concrete use of this

arcana was that constituent power belonged to the people, and the constitution was

merely its imperfect vessel, shattered when no longer useful. This argument was

employed during the French Revolution by the Constituent Assembly to fight for the

right to break the old constitutional laws, shape new laws, and form a new vessel, a new

constitution. The state of siege, during which time no vessel held constituent power, was

a time of return to the origin and a chance to renew contact with the infinite force of the

constituent power. Theoretically, it was an opportunity to return to the individual will of

the people. Realistically, of course, it was quite another thing.

For Schmitt, Sieyes’ idea provided a unique opportunity as well. The ability to act

outside of law, the duty to be lawless, was the essence of the sovereign. No other position

could withstand the strain of being in that liminal space, facing the abyss, feeling the

force of constituent power, and watching new forms emerge. As the legal theorist Kim

Lane Scheppele explained, Schmitt viewed the effect of Sieyes’ theory of the state of

exception as allowing “the executive to rule outside of law in times of crisis, all the while

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defining this exceptional power not as “new law” but as “not law” (Scheppele 1.4). As

many have pointed out, Schmitt’s adoration of Sieyes’ vision fit easily into his German

legal tradition. The Imperial Constitution in 1871 was the first substantial constitution of

the unified German state. In it, an emergency clause gave the Kaiser full power to declare

and conduct war. The 1919 Weimar Constitution’s article 48 allowed the President to use

any means necessary including armed force and suspension of constitutional rights, if

“public safety is seriously threatened or disturbed.” Although it stipulated that another

law should be passed clarifying the limitations of such power, no such law was ever

passed. The emergency powers of the President were so ambiguous that it was impossible

to control them. And article 25 gave the President the additional power to dissolve the

parliament for any reason, effectively providing the sovereign ultimate control. In 1933,

as the Nazis consolidated power, the President did both: he declared a state of emergency

and then shut down parliament, as per articles 48 and 25 of the constitution. The space

outside of law, the “not law” wherein one constitution was shattered and another was

heralded, appeared quite effortlessly. As Schmitt wrote “no constitution on earth had so

easily legalized a coup d’etat as did the Weimar Constitution” (Agamben 15).

But even earlier, the governments of the Republic, starting with Bruning, used

article 48 over two hundred and fifty times to declare states of exception, to issue

emergency decrees, to imprison thousands of communist militants, and to set up

extralegal tribunals to authorize death sentences. In October 1923, the government called

upon article 48 to manage the inflation of the mark, conflating political, military and

financial emergencies, something common in contemporary practices of state of

exception declarations. As Agamben points out, though it is well known that the final

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years of the Weimar Republic existed entirely in the state of exception, it is less know

that article 48 allowed three years of previous Presidential dictatorship and the

suspension of parliament. Once Germany was no longer a parliamentary republic, it was

vulnerable, and Hitler took power. At the time, Schmitt viewed this state of exception as

necessary, for it guarded the essence of the constitution.

Schmitt’s term, “Commissary Dictator” indicated he who acted as the commissar

for constituent power. He “suspends the constitution in order to protect it” (Schmitt 118).

Schmitt rightly noted that Abraham Lincoln used this same argument when he suspended

the U.S. Constitution. He was, of course, referring to Lincoln’s suspension of the right to

Writ of Habeas Corpus in 1861. But Schmitt was also supportive of the Weimar

Republic’s state of exception. In his view, such dictatorship should not follow existing

law; it should seek to create an atmosphere in which a true constitution is made possible.

“Therefore, dictatorship does not appeal to an existing constitution, but to one that is still

to come” (Schmitt 119). This teleological end was the expression of constituent power,

his arcanum. Its existence, he argued, negated the concern that dictatorship is merely

“sheer power.” At least in the case of Schmitt’s Weimar Republic, history has shown that

a Commissary Dictatorship “functions instead as a transitional phase that leads inevitably

to the establishment of a totalitarian regime” (Agamben 15).

In 1940, shortly before his death in a failed attempt to escape the Nazis, the

German philosopher Walter Benjamin, a contemporary of Carl Schmitt, wrote “the

tradition of the oppressed teaches us that the state of emergency in which we live is not

the exception but the rule…it is our task to bring about a real state of emergency…in the

struggle against fascism” (Benjamin ). Like Schmitt, Benjamin was deeply concerned

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with the concept of sovereignty and the consequences of sheer power. He had read

Schmitt’s work; his letter of December 1930 to Schmitt even expressed a naïve

admiration for Dictatorship, in particular. It is also likely that Schmitt read Benjamin’s

influential essay “Critique of Violence” written in the same year Schmitt published

Dictatorship. This intellectual exchange was quite poignant since, as a Jew, Benjamin

later fell victim to the “infinite, incomprehensible abyss of the force” of constituent

power, which Schmitt, a Christian, so loved. “Critique of Violence” echoed Sieyes’

concepts and distinguished among three types of power/violence: Law-making, Law-

preserving, and Law-destroying.

For Benjamin, all law began with violence. And any violence that was outside of

law threatened law, not because it might have destructive ends but simply because it was

outside law’s control. Wars, crimes, strikes, and revolutions all were examples. All had

the potential to re-make law, to transform through greater force. Law-preserving violence

used legal means to maintain itself. Through maintaining a constant threat, it kept the

myth of an all powerful, overarching force, the source of arcana, alive. The trouble here

was that law-making violence, once realized, and congealed into law, had to be preserved

by law. In other words, the two forms of violence oppose one another, since in order to

preserve existing law, all potential, law-making violence needed to be halted. This

struggle was a dangerous one because the power of the original source was weakened.

Without the vitality of law-making violence, congealed law became dead law, and its

preservation became fascist. Legal institutions decayed; parliaments declined;

constitutions rotted. Essentially, Benjamin reimagined the interaction between constituent

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and constituted power such that the two were in an endless struggle, with the figure of the

sovereign as a wide-eyed prop, between them, bearing witness to the catastrophe.

Benjamin, however, had great faith in violence, for he noted that law-making

violence would always prevail, always emerge (temporarily) victorious, regardless of

how much counterforce law-preserving violence applied. It was a cycle, with legal

powers emerging and failing, again and again. Interestingly, there was a space within this

cycle where neither form of violence held sway: police violence. During times of

emergency, Necessity arose, and police had authority to determine for themselves which

ends were legal. They were erstwhile, everyday, banal sovereigns. Benjamin viewed

police power as a formless, ghostly, all-pervasive presence in civilized life. This presence

was not based in decision, made in time and place. Rather, police violence was a means

to an end, emerging out of Necessity, which, as we recall, knows no law. In a sense,

police violence created little states of exception within the larger state proper.

Had Benjamin ended his critique here, we would be left with three forms of

violence, one making law, one preserving it, and one in the state of exception. The police

would be the gate, law-preserving violence the gatekeeper, and law-making violence at

the threshold, ever waiting. The arcanum, the secret power, would be a threatening one,

for law-preserving’s power quite clearly depended on keeping the gate bolted shut. This

image of a sovereign, who was doing battle with his arcanum, provided an ironic view of

the state of exception. The serious threat to public safety that triggered the state of

exception would be law itself. There would be no escape; fate would always prevail,

making/preserving law, endlessly. Violence would justify itself over and over; “just

ends” would be obtained by “justified means”; “justified means” would be used for “just

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ends.” Using Sieyes’ terms, constituted power, once congealed into law, would always

declare the justness of constituting power. On both sides of the gate, however,

power/violence ruled. Law supplied the form necessary to create the appearance of

representation, and enabled the sovereign to defend something through suspending it. In

fact, divine, political, constituent, and law-making arcana all functioned in a similar

manner and had the same effect. All provided the sovereign with the essential right to

declare a state of exception and to rule over it, “justly, legally.” All called upon a secret,

imagined source in order to make and preserve law and to decide by what means it could

be suspended.

But Benjamin did not end his critique with police violence. Rather, he asked a

fundamental question. Could there be a form of violence which neither made nor

preserved law, did not justify ends and means, and did not rule via a sovereign prop?

Could there be a state of exception in the true sense, without a sovereign, without his

gate, without his arcanum? Could there be a law-destroying violence, unalloyed, a “pure

means?” If such a form of violence existed, Benjamin posited the suspension of all law,

an end to state power, and the dawn of a “new historical epoch” (Benjamin 300). Nearly

twenty years later, when Benjamin called for a “real state of emergency” it is quite likely

he called upon law-destroying violence, the only form of power that needed no arcanum

and permitted no sovereign decision. When he noted that the “state of emergency” he

lived in was not the exception but the rule, he was, in fact, correct. As Agamben

explained “the Third Reich had concretely brought (this) about, and the obstinacy with

which Hitler pursued the organization of his “dual state” without promulgating a new

constitution is proof of it” (Agamben 58). Whereas Carl Schmitt proclaimed that the

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sovereign was he who decided on the State of Exception, Walter Benjamin declared that

the sovereign was he who excluded the State of Exception. In this way, Benjamin made

visible the actual position of the sovereign: the gatekeeper, he who stands at the threshold

and is neither internal nor external to the law. The sovereign did not decide anything; the

moment of decision was never possible, since the arcanum, constituent power, was

unknowable and untranslatable. He simply maintained his position between two forms of

violence/power and appeared to control the force and flow. All he could do was exercise

his power to suspend, and then rule. His State of Exception was his to exclude from the

juridical order.

It is difficult to imagine what a law-destroying violence would be, though much

has been written about Benjamin’s concept. Certainly his call for a real state of exception

was a desperate one, and it laid bare a complete loss of faith in the relationship between

law and any form of justice. When the State of Exception is the rule, the only recourse is

to some other form of violence, something to counter the force of lawless law, that which

“claims to maintain the law in its very suspension as force of law” (Agamben59).

Benjamin asked for a “pure” violence, one that had force but was not involved in the

game of arcana. By extension, he also asked for “pure” law, unexceptional law.

In contemporary terms, the constitutional restraints liberalism places on the

sovereign might seem the answer. If liberal constitutionalism makes clear distinctions

regarding the kinds of power the sovereign maintains and requires particular legal

sanctions before a state of exception can be declared, the concern that the exception could

become the rule again should be eliminated. A modern democracy, such as the United

States, imposes restrictions even as it acknowledges that in some cases, under extreme

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circumstances, exceptional measures are necessary and constitutional rights and freedoms

can be suspended. To compare the National Emergencies Act (the current highest

authority regulating U.S. Presidential national emergency declarations) to article 48 of

the Weimar Constitution would be anathema, at least to many. Upon recommendation of

the Special Committee on the Termination of the National Emergency in 1973, the NEA

was enacted in order to limit the authority granted to the President. Previously, the

Trading with the Enemy Act of 1917 gave him power to declare a State of Emergency,

whether the threat originated inside or outside U.S. borders, and to exercise complete

authority in both domestic and international affairs, unchecked by congress. The Great

Depression had offered the sort of complex threat that allowed for a blurring of internal

and external boundaries. In Roosevelt’s inaugural address he used the metaphor of war to

describe financial crisis: "I shall ask the Congress for the one remaining instrument to

meet the crisis--broad executive power to wage a war against the emergency, as great as

the power that would be given me if we were in fact invaded by a foreign foe"(Church 4).

Such use of war metaphor for various economic and other internal crises allowed the

President to have an “aura of war” and to use the term for public effect. It provided the

Commander-in-Chief with a new arsenal of powers.

Years later, Justice Jackson warned of just these expanded powers in his

concurring opinion in the Youngstown Sheet & Tube Co. v. Sawyer case, argued before

the Supreme Court in 1952. He recalled the lessons of the German Weimar Constitution’s

article 48, the French state of siege and the British emergency powers. He concluded that

the "President's power must stem either from an act of Congress or from the Constitution

itself." And he warned that if emergency powers were not limited further, Presidential

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power would be without end. Unaltered, Jackson feared, “It need submit to no legal

restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is

at least a step in that wrong direction” (Church 13).

By 1973, when the Special Committee of the Termination of the National

Emergency issued its report, Justice Jackson’s concern had taken on deeper meaning. The

report began with this dire news:

Since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially proclaimed states of national emergency: In addition to the national emergency declared by President Roosevelt in 1933,there are also the national emergency proclaimed by President Truman on December 16, 1950,during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971. These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all encompassing manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal Constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens (Church 11).

It continued that for forty years emergency rule had abridged citizens’ constitutional

rights. The NEA was designed to change the endless emergency rule.

Section 201 of the NEA authorizes the President to declare a national emergency,

but it also provides certain checks and balances. Once he makes the declaration, he must

immediately inform Congress and publish a notice in the Federal Register. Once the

National Emergency is declared, the President may use existing rights, which are

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provided to him in other additional statutes. Further, the International Emergency

Economic Powers Act, Title  50,  §§1701-­‐1707,  enacted  in  1977,  gives  the  President  

the  power  to  declare  a  state  of  emergency  only  when  there  is  a  threat  to  national  

security,  foreign  policy,  or  the  U.S.  economy,  assuming  the  danger  originated  

completely  or  mostly  outside  U.S.  borders.  Specifically,  it  permits  the  President  to  

block  transactions  and  freeze  assets  to  combat  the  danger.  If  there  is  a  physical  

attack  on  the  United  States,  he  can  confiscate  any  property  of  a  country,  group,  or  

person  responsible  in  any  way  for  that  attack.  Also, any expenditures that are “directly

attributable” to the exercise and powers of the declaration of a State of Emergency must

be reported. A national emergency can be terminated in three different ways: through a

declaration by the President, through a joint resolution enacted by congress, and through

non-renewal after the anniversary of the declaration of emergency.

However, in response to 9/11, additional provisions blurred the boundaries of

internal/external threat. Napoleon’s old concept of a “fictitious or political” state of siege

returned. Recall, this one essential distinction in Article 92 of the French Constitution: a

state of siege could only be declared in the case of armed revolt or external situations that

would threaten the security of the state, directly. In 1811,Napoleon altered the article to

allow a “fictitious or political” state of siege, even though there were no actual attacks or

external threats by external forces. Consequently, the military was given policing powers

including searching private homes, regulating “dangerous” publications and meetings and

forming military tribunals to try certain civilian crimes. Likewise, in the United States,

Executive Order 13224, the USA Patriot Act, and the Sunsets Extension Act provide

similar provisions. Post 9/11, the threat of global terrorism expanded the understanding of

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external threat. Global terrorist became internal and external threats, and the War on

Terror became so complex and pervasive that the definition of an “immediate threat

originating outside the border” changed considerably. Thus, many of the concerns

expressed by the Special Committee of the Termination of the National Emergency,

reemerged.

A number of legal theorists, including Agamben and Scheppele, are concerned

with the unchecked authority of both the Bush and Obama administrations’ war on terror

and hear the echo of Schmitt’s theory of exception in their methods. However, such

accusations are difficult to prove because there are few empirical studies of how the

power of exception is being invoked; many invocations are kept secret or are obfuscated.

In her seminal essay Legal and Extralegal Emergencies, Kim Lane Scheppele identifies

four “technologies of emergency” which work to keep the aura of arcana alive:

delegation, suspension, deference, and partition. She explains that open, constitutional

emergencies are seldom declared and that “creeping emergencies,” in which powers are

invoked partially, are far more prevalent. In that way, many “fly under the radar of

constitutional alarm” (Scheppele 8). They are sub-constitutional and allow a “veneer” of

legalism to remain.

The most prevalent of these technologies is delegation: through an “enabling act”

a major portion of legislative power is delegated to the executive. The President can then

call upon the delegated power in a crisis situation. When the legislature delegates,

generally the judiciary does not express concern. The best know enabling act was the one

approved by the Reichstag on March 23, 1933; it declared a permanent state of

emergency and gave dictatorial rights to Hitler. Currently, in the United States, the

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Stafford Act is the most commonly used enabling act. It gives the President the power to

declare emergencies and to bypass the constitutional mandate regarding congressional

appropriations process in order to send money to areas experiencing natural disasters.

Even though the Stafford Act suspends a crucial part of the constitution, it has never been

formally challenged. Thus, “once an enabling act is passed, the executive simply appears

to be following a law enacted by the legislature, instead of seizing powers on his own,

which minimizes the constitutional disruption (Scheppele 11). This gives the appearance

of normative, legal governance.

Suspension allows a similar appearance, but is more extreme. It gives the

executive the constitutional power to dissolve parliaments or to act alone when legislature

is not in session. Thus, it can dissolve constitutional checks and balances. Here, again,

Nazi Germany’s Articles 48 and 25 allowed the President to dissolve parliament and

declare a state of emergency. A much less dramatic form of suspension is The Recess

Appointments Clause of the U.S. Constitution that allows the President "to fill up all

Vacancies that may happen during the Recess of the Senate." In 2012, President Obama

made three appointments to the National Labor Relations Board (NLRB) while the

Senate was on break in January. Clearly it was a surreptitious, political move, since the

break was for holiday and the Senate continued to hold pro forma sessions. On June 26,

2014, the United States Supreme Court unanimously held the recess appointments were

unconstitutional. Still, the suspension clause remains. This recent use of the clause could

be an expression of the executive’s frustration with Congress’ failure to lead. In an

interview on July 2, 1014, Obama said, “We have a Congress that’s broken down… We

have a House of Representatives that is so ideologically driven at this point that they are

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not able to carry out basic functions of government … what I have to be sure I’m doing is

looking for every opportunity to go ahead.” This statement speaks to an old concern, also

expressed by Justice Jackson in his Youngstown Steel concurring opinion: “But I have no

illusion that any decision by this Court can keep power in the hands of Congress if it is

not wise and timely in meeting its problems. A crisis that challenges the President

equally, or perhaps primarily, challenges Congress. If not good law, there was worldly

wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can

use them." We may say that power to legislate for emergencies belongs in the hands of

Congress, but only Congress itself can prevent power from slipping through its fingers”

(Church 19). The strength and wisdom of advice and consent is fundamental to the

workings of the United States democratic process.

Deference occurs without any formal change in law and is another indication of a

“broken” process. Branches of government designated as checks on the executive simply

do not to exercise their power. They look the other way, for political or other reasons.

Korematus vs. the United States in 1944 is one clear example. Since 9/11 deference has

become even more complex. For example, Scheppele points to Rashul v. Bush and

Hamdan v. Rumsfeld. In both, the Guantanamo detainees won their habeas corpus suits,

but remained detained. Some view the infamous Hedges v. Obama case as another

example of deference. A group of journalists and other concerned individuals challenged

the National Defense Authorization Act of 2012, specifically section 1021 (b) (2) in

which citizens and permanent residents, suspected of supporting those engaged in

hostilities against the United States, can be detained indefinitely. The suit maintained that

under the NDAA, human-rights workers, journalists, and activists would fall into this

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precarious situation, based on vague allegations. In May 2012, District Judge Katherine

B. Forrest ruled in their favor. Since that ruling, the decision has been appealed,

overturned and finally denied a writ of certiorari. For two years, it traveled, first to the

Second Circuit and then to the Supreme Court. Finally, in March 2014, the Supreme

Court denied Hedges’ petition for a review, because the plaintiffs lacked sufficient

immediacy and were under no realistic danger or credible threat of enforcement. During

the two years between Forrest’s decision and its overturn, an emergency stay of Forrest’s

decision was in effect, and the blocked NDAA section remained legal to enforce. In other

words, regardless, the National Defense Authorization Act of 2012, specifically section

1021 (b) (2), was never actually affected. As Scheppele explains, “now courts issue

decisions that appear to provide a check on power in the name of rights. But they are still

deferring in practice” (Scheppele 12).

Finally, partition may be the most insidious of the technologies, and the most

familiar. The Supreme Court’s reasoning for denying the Hedges’ petition was based on

partition. In an emergency situation, often only some portion of a nation is at risk. In a

constitutional democracy, most citizens seem unconcerned regarding suspension of

fundamental laws or rights. Instead, when a crisis occurs, space is cordoned off,

particular peoples are targeted, and specific rights are denied. Nazi Germany’s “dual

state” is, again, the most infamous example of partition: the “normative state” followed

prior law while the “prerogitive state” suffered under arbitrary rule. Scheppele points to

many examples, including Britain’s emergency laws for the North during Ireland’s

“troubles,” the geographic partitions during the recent wars in Chechnya, and the

detention of Muslim men in New York after 9/11. Clearly, one could add U.S. detention

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centers as indications of partition. “Emergency zones” can allow a government to cordon

off anomie and give the appearance of normalcy because a partition separates the “few”

who are affected by the emergency powers from the “many” who are not.

Delegation, suspension, deference, and partition function as forms of arcana,

hidden plans and practices that help to maintain the distinct right of sovereignty. They are

“extraordinary rights,” but upon what are they based? The United States Constitution

makes clear that the Executive is under the law and that the law is made by parliamentary

deliberation, safeguarded by the courts. It demands a separation of powers, checks and

balances, in order to ensure that power is never abused, especially during a State of

Exception. There should be no arcana, no gate and no gatekeeper.

Globally, the most respected contemporary constitutional regimes have rejected

Schmitt’s vision of the world and taken great pains to see that sovereign arcana is under

strict control. Perhaps in response to harsh lessons from the past such as the failure of the

Weimar Constitution and the “regimes of horror” in the 1990’s, recent standard

constitution drafting practice has tended to regulate states of exception carefully through

detailed, strictly enforced law. The South African Constitution is one such example. It

acknowledges that a state of exception may be necessary, but it safeguards basic human

rights and requires continuous parliamentary review of all executive decisions. As

Scheppele indicates “states of emergency, like states of war, are being filled with legal

content” (Scheppele 1081).

But in the United States, it appears this is not the case. In particular, as a response

to the War on Terror, a National State of Emergency has been in effect for well over a

decade; fundamental rights have been compromised, and Schmitt’s vision of a

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sovereign’s power as “the unlimited and illimitable bearer of the iura dominationis, the

rights of rulership, which do not even have to be restricted to cases of emergency” seems

imminent (Schmitt 123). If Scheppele is correct, and “creeping emergencies” supply the

backgate necessary for presidential arcana, further investigation should reveal cause for

alarm. For each of the National Emergencies continued in the Federal Register this year,

there is an original order containing plans for specific measures. In the case of the

National Emergency with Respect to the Stabilization of Iraq, first issued May 22, 2003,

by executive order 13303, using the International Emergency Economic Powers Act, the

National Emergencies Act, the United Nations Participation Act, and the United States

Code, there does seem to be sufficient cause for alarm. The order’s language is

overbroad in fact, and it clearly provides protection for U.S “attachment, judgment,

decree, lien, execution, garnishment, or other judicial process” with regards to the

Development Fund for Iraq and any Iraqi “interests, proceeds, obligations or financial

instruments.” Further, the current President seems to have been alarmed as well, since on

May 27, 2014, he issued an executive order ending the immunities granted to both the

Development Fund and U.S. property interests pursuant to executive order 13303. Further

investigation regarding executive orders attached to National Emergency declarations

would likely produce additional issues of concern. And while it may be encouraging to

see one President check his predecessor, it also indicates the danger of placing such

power for potential abuse in the hands of the Commander-in-Chief.

Using various means, both legal and extralegal, there is little doubt that the

Executive branch has suspended some of the constitutional rights of U.S. citizens and

committed human rights violations. Something fundamental has changed since 9/11, and

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the rational global response tends toward rejection of ancient and dangerous forms of

governing through arcana. More and more, it is becoming clear that the secret to the

secret powers of the ruler is a simple one: he who can convince his followers to suspend

law, has unchecked power and may rule as he wills. If the history of states of exception

has taught us anything, it is that when the law allows lawlessness and the juridical order

withdraws itself, corruption is likely to follow.

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References

Agamben, G. (2005). State of exception. Chicago: University of Chicago Press.

Benjamin, W., Eiland, H., & Jennings, M. W. (2006). Walter Benjamin: Selected

writings. Cambridge, MA: Belknap.

Church, Frank. (1973). Report of the special committee on the termination of the national

emergency. Washington, D.C.: U.S. Government Printing Office.

Golden, G. K. (2013). Crisis management during the Roman Republic: The role of

political institutions in emergencies. Cambridge: Cambridge University Press.

Grotius, H., & Wilson, G. G. (1941). Grotius: Law of war and peace. S.l.: S.n.

Locke, J. (1980). The second treatise on civil government. Indianapolis, Indiana: Hackett

Humphries, Stephen. Legalizing Lawlessness: On Giorgio Agamben’s State of Exception. In The European Journal of International Law. Vol. 17 no. 3, 2006 Machiavelli, Niccolo. Discourses on Livy. Trans. Harvy Mansfield and Nathan Tarcow. Chicago: University of Chicago Press, 1996. Scheppele, Kim Lane. “Legal and Extralegal Emergencies” in The Oxford Handbook of Law and Politics. Ed. Caldeira, Kelemen, and Whittingten. Oxford: Oxford University Press, 2008. Schmitt, Carl. Dictatorship. Trans. Michael Hoelzl and Graham Ward. Cambridge: Polity Press, 2014.

- Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Cambridge: MIT Press, 1985.

Tacitus. The Reign of Tiberius. Trans. Gordon. Gutenberg, 2005.

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