Tuesday, May 24, 2011

Are we living in the state of exception?

I've recently finished reading Agamben's Homo Sacer: Sovereign Power and Bare Life as well as Bruce Ackerman's The Decline and Fall of the America Republic. The two books have remarkably different rhetorical styles and very different philosophical methodologies, yet I was struck to by the parallels in the two books.

Agamben writes at a very high level of abstraction. His book deconstructs modern sovereignty which has evolved from the model of the polis to the model of the camp. In the modern concept of life we combine the ancient concepts of bios and zoe. Bios is a specific and contingent "life" which is created through its inclusion in the political order. Bios is related to the self-reflective "thinking" or virtual being which Heideggerian labeled Dasien. Zoe, on the other hand, is pure related to Schmitt's "bare life," and refers only to the biological functions of the animal human. Agamben expands on this distinction (elaborated by Michel Foucault) and points to an ancient legal artifact, homo sacer, which marked the point of indistinction between zoe and bios. Homo Sacer is the "sacred man" (sacred in the ancient sense of removed from the realm of man). A person designated homo sacer can be killed with impunity, but cannot be sacrificed. Thus homo sacer is excluded from political existence and in regard to the law is essentially a non-human. His only existence is as pure bare life, which is only defined by its capacity to be killed. However, homo sacer is also deeply political in that is included in the political order by its very exclusion. Homo Sacer is for Agamben part of the originary of sovereignty because homo sacer marks the boundary (the zone of indistinction) which separates law from lawlessness (or more precisely the state from the "virtual state of nature" which is in fact the "state of exception").

However, more and more in modern law and politics the people are becoming indistinguishable from bare life. Human rights, which are maintained to be indivisible from the biological human, are held to be the basis of sovereignty. Yet this democratic ideal breaks down at the very site where it is put to its most important test - in camps of displaced individuals who exist outside a social and legal structure - i.e. refugee camps. Refugees are modern homo sacer, they can be killed, they have no legal rights because they don't belong to any nation. They can be killed with impunity - without a record there is nothing preventing killings which often occur - but they cannot be sacrificed - that is they cannot be put-to-death through the legal system as is done with convicts and murderers. They exist as pure "bare life" defined only by its potential to be killed. The NGOs and UN Aid Agencies that barely sustain their existence are proof of their capacity to be kept alive and conversely to be killed. This is bio-power in an extreme form.

However, bio-power operates in the US, as well, and is deeply embedded in democratic sovereignty. Agamben demonstrates this point by pointing to the extent to which politics has embedded itself within medicine, in particular in medical definitions of death. Hence, "brain-dead" is now a legal definition of death. Brain death that precedes "biological" death. The heart is still beating but the human is dead, the Dasien is missing. The "brain-dead" living corpse is the purest form of Western homo sacer and bare life. The "brain dead" body is removed from the legal realm of the living (as is homo sacer) and can be killed with impunity (as when doctors begin to harvest organs) yet is still included in the realm of the living as biological life (the heart still beats - even if only with the assistance of machines) and is included only the juridical order only in its capacity to be killed - or as bare life.

Now, eventually (if not currently), all life in modern democracy is reduced to homo sacer/bare life. Politics and medicine come together in biopolitics (decisions about who can be allowed to die and who will be able to live occur in the interaction and connection between the two). Thus all the people become "bare life" which is they are determined primarily by their capacity to be killed (or ended).

Furthermore, the state of exception, or the space outside the polis (the sovereign authority and homo sacer occupy the zones of indistinction which mark the extreme borders of this space) has migrated from the borders of the social and has instead become the regular state of all existence. Emergency states have suspended law and installed martial law in many countries (as was the case in Egypt where "A state of emergency" was maintained for over four decades). When everyone exists in the "state of exception" where the law no longer applies, then everybody is homo sacer.

Finally this brings us to Ackerman's working delving into presidentialism and the growth of executive power. Agamben specifically points to the US constitution as an example of how the traditional sovereign concept of prerogative (in which the sovereign can momentarily suspend the legal system in a state of emergency) is embedded in our constitution with the creation of a unitary executive with power to protect the state in case of emergency. Ackerman details (at a lower level of abstraction than Agamben) the specific process by which US presidentialism is gradually driving the United States into a permanent "state of exception".

This process is a long and drawn out series of events that Ackerman believes will eventually lead to the end of US republicanism as we know it. However, Ackerman is not exactly an alarmist - he doesn't claim to be able to know or predict what a post-republican United State would look like, only that it wouldn't be based on a diffusion of the popular will through roughly co-equal branches of government (as is the typical understanding of US republicanism).

The United States is not the simple - largely ad hoc - institution it started as. It has ballooned into a huge bureaucratic state that could not have been predicted by the Founding generation. This was a necessary transition to changing conditions and complexities that faced a modern state. However the increased power and influence of all the agencies that make up the United States creates a problem for the republican system instituted by the constitution. Agencies are profoundly responsible for interpreting and applying law and have become the de facto face of government to the people. Furthermore, modern Presidents have used their influences over agencies to create the perception that a President can make large shifts in priorities and policies simply by virtue of being president - without any assistance from Congress or the Courts. Hence in modern politics everything done by anybody (Congress, agencies, even the courts) is immediately attributable to the President. (Hence ObamaCare and Bush Tax Cuts, etc.) The president has a great deal of symbolic power which can shape policy, but he does not possess much in the way of formal policy-making power. His oath is to "faithfully execute" the law, not to create it. However, as expectations of presidential guidance over agencies increases, presidential temptation to influence agencies direction becomes ever greater.

Presidents power to influence agencies has also gradually increased as more and more top positions within the gradually expanding bureaucracy are assigned to presidential selection with consent of congress. Presidents have huge incentive to appoint politically zealous acolytes who will push agencies towards pet-projects of the White House.

This temptation to essentially, suspend law, has lead to developments in the office of the president that point towards a permanent state of legal exception in the US.

The path into the state of exception may roughly be said to start with Reagan administration and the first issuance of the first "Executive Order". An executive order is essentially a legalistic document that mandates policy priorities for agencies. These "executive orders" are problematic in that they blend the roles of legislation and execution. Furthermore, Reagan and subsequent presidents have used the EO to great effect in undermining or occasionally outright defying congressional law-making.

A more recent development is the use of "signing statements." Signing statements are questionably constitutional, documents which the President includes when he signs a new bill into law. SSs give the presidents interpretation of legislation and give cues to agencies about how they should interpret legislation. These documents are often hastily written and lack legal rigor, but are often referred to by agencies in justifying decisions in how they choose to apply guidelines provided by Congress. Now, in order to apply legislation, it is necessary to interpret the law. Agencies interpret law constantly and there is no constitutional problem. However, the president's signing statements in interpreting law often state that specific provisions of an act are unconstitutional, and therefore should not be applied. Thereby assuming the role that has traditionally been fulfilled by the Supreme Court. This is problematic for two resons. First, the President only has 60 days to either veto or sign a bill into law. This means signing statements are often completely hastily and do not make for clear and compelling constitutional constructions. Furthermore, because the signing statements essentially pre-empt the supreme courts judicial review, it undermines the Courts ability to control constitutional interpretation (if a law is never applied, how can a challenge to its constitutionality ever percolate to the Supreme Court.) This pre-emption undermines legal continuity and severely hinders the ability of the Courts to structure the law in a consistent and comprehensive way.

With Executive Orders and Signing Statements the president essentially writes the law, interprets the law, and executes the law. Thereby, consolidating three powers (that our founders separated into three branches of government) to the President and his staff.

Finally, there is no reason to believe that the President will use these powers benignly and maintain inter-branch strength balance. John Yoo's torture memos, demonstrate how painfully extreme the opinions created by the White Staffers can be. John Yoo was recruited to the office of the Attorney General, because he was a committed conservative ideologue. Yoo's theories and legal opinons - while very written - are not moderate and do not represent a balanced approach to inter-branch authority. Yoo's positions on Executive Authority come dangerously close to Nixon's Maxim, "If the presiden does it; then it's legal". Reading Yoo's theory of executive prerogative is like a reading Agambens theory of sovereignty through a twisted fun-house mirror, in which the permanent "state of exception" is endorsed wholeheartedly rather than critiqued and resisted.

Agamben (de)constructs a theory of sovereignty in which bare life - existing in the state of exception - marks the limits of the state and is also at its center and point of origin. Our own US constitutional system clearly includes artifacts of sovereignty as bare life - the unitary executive has the power to exercise prerogative before the slow moving deliberative branches can catch up with it to stop it (ironically the sovereign power enforces the law, but is also exists in a "state of exception" outside the law). This basis of the state in bare life, is becoming more and more problematic, as the executive gradually expands. Eventually, through the processes described by Ackerman, the US will becomed engulfed in a permanent state of exception. The institutions and practices are in place for the President to suspend the law and launch the US into an era of Executive Hegemony, all that is necessary is a concatenation of events that creates the impetus for this transition - perhaps another terrorist attack or a massive double-dip recession.

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