The State of Emergency: Legal and Political Nihilism - Coursework Example

The State of Emergency: Legal and Political Nihilism [Student’s Name] [Subject] Professor January 23, 2007 Introduction The events that mitigated exceptional response from the United States fueled ongoing debates regarding the legality and appropriateness of the measures. Many observers noted the emergency powers granted to the Executive branch were deemed excessive and incompatible with the United States Constitution. The First Amendment and the Fourth Amendment were the main statutes most affected by the emergency rule. Proponents however would argue that the emergency measure was necessary and an expedient method of dealing with the crisis. The process of liberal democracy would inadvertently delay the implementation and compliance of the said measures should they go through the usual channels. Emergency powers granted to the Executive branch could trace its origins from the Romans. Carl Schmitt in some of his works mentioned that emergency powers were utilized to facilitate pragmatic measures in times of crisis.1 However, the measures accorded to the leader were temporary in nature and he was expected to revert back to constitutional rule once the crisis was over. In later discourses, Schmitt would assert a different view. In Political Theory, the exceptional circumstances advocated an all-powerful sovereign who should not only restore constitutional order but also work within the limits of the law.2 Schmitt would later criticize the Roman method of expediting order in times of crisis: ignoring norms and legal concessions to resolve the problem immediately. The decision of the executive in this case could be Machiavellian in nature. Adopting radical methods, whether disregarding acceptable norms or adhering to them, as long as the crisis was arrested, would matter most. Ramifications of the Post 9/11 Response of the US Government The United States government’s response to the 9/11 crises could be thought of as a knee-jerk reaction to the events. The hastily legislated PATRIOT Act sailed through Congress with the least resistance. Within six weeks from the day of terror, the House voted 356-to-66 and the Senate 98-to-1 to pass the anti-terror bill.3 The radical and expeditious manner of enacting a law was not without ramifications. Deeper examination of the law revealed that the act ultimately sacrificed the ideals of democracy in order to satisfy security criteria. The Act bestowed upon the Executive branch unprecedented power to implement measures to preempt any acts of terrorism on American soil. However, sections of the Patriot Act warranted the suspension of the statutes of the First and Fourth Amendments. The Gestapo-like tactic was defended and justified as a retaliatory strategy of the US government to external acts of aggression. Assistant Attorney General Daniel J. Bryant turned the proposition of self-defense on the Fourth Amendment on its head by propounding that “[i]f the government's heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.”4 The flagrant disregard for the basic, inalienable rights accorded to American citizens was merely a preamble to a string of violations all in the name of National Security. In this situation, the exceptional response has in fact became the law and asserted its legitimacy through the zealous manner it was enacted. Paye (2006) astutely observed that the enactment of the Patriot Act effectively circumvented the judicial control and legitimized what he termed as a “frontal attack on the rule of law.”5 The Patriot Act eradicated the boundaries between police and intelligence work. The judicial checks and balance was markedly absent and the Act provided the Executive branch the unrestrained right to exercise its prerogatives ignoring the basic tenets of the Constitution. The most serious consequence of the act was the apparent subjugation of the judiciary to the police. Suspected persons could not invoke the Fourth Amendment as defense. Furthermore, the administration’s demanded for more power to implement measures judged to be preemptive strategies had created the impression that the Act was in support of self-preserving agenda. What should have been a temporary state of emergency had evolved into a state of permanent exception. The reauthorization of the Patriot Act had revealed the true intentions of this administration. Article 212 authorized disclosure of communication, information and Internet accesses to the government without the benefit of a judicial courts accession to the act. Article 214 sanctioned the government to eavesdrop on suspected individuals without a warrant. Formerly, the police had to prove to the courts that there were mitigating circumstances that would justify such act. Under the reauthorization, the right to privacy was eroded and due process clearly ignored. Finally, Article 218 permitted authorities to conduct search and seizure on suspected individuals without cause. This law tolerated discrete searches on suspected individual’s homes or places of work merely on the hint of suspicion. Discourses on Emergency Rule It was only after the First World War did Germany attempted to institute democratic ideals in governance. However, the fledgling republic had insurmountable political and social challenges that eventually led to its demise in the 1930’s. Carl Schmitt theorized that the highly pluralistic society of the German Republic exacerbated the precarious position of the Weimar Republic. Alternately, he advocated that only a dictatorship would restore equilibrium in the country. He envisioned the leadership of President von Hindenburg would safeguard the constitution, gain the support of the army and bureaucracy and cushion the attacks of the prevailing political system on the Constitution.6 For Schmitt, the sovereign was accorded the duty to decide the “state of exception”7. Dyzenhaus however criticized Schmitt’s ambiguous definition. To liberal states, the state of exception went beyond standard legal norms. Liberalists attempted to curb excesses by “jurisdiction of the sovereign--the conditions both for declaring a state of exception and for resolving it.”8 Schmitt maintained that in times of emergency rule, it was more important to consider who would make the decision and not what law was applicable. Schmitt’s theory of law concurred with Hobbesian decisionism where “authority and not truth makes law.”9 Schmitt would choose the Reichpresident as the decision maker and that his concrete actions would reverse the fate of the German people. The restrictive nature of the processes of liberal democracy, in Schmitt’s view entailed “too much discussion and the suffocating constriction of rules and of checks and balances.”10 Agamben described the paradox of sovereignty in the exercise of extralegal measures to address emergency situation as a situation where the “sovereign , having the legal power to suspend the validity of the law, legally places himself outside the law”11 Following Schmitt’s absolutist position on exceptional cases, another condition must also be present to make the declaration valid. Homogeneity should exist among the populace and there should be a distinction between friend and foe. In the Weimar Republic, the German’s political consciousness was divided and the presidency was inutile because of the more dominant extremes of society. The nationalist and Nazi movements were too widespread and the absolutist methodologies were met with indignation and protest. In the end, President von Hindenburg had to concede defeat. Comparing Schmitt’s Model of Emergency Rule to Post-9/11 State of Exception Schmitt’s decisionism was deeply rooted in Hobbesian philosophy. Hence the expediency of a decision coming from the Reichpresident was a necessary feature in Schimitt’s exception rule. In politics, the sovereign had the final say and his decision generally shaped the nature and direction of the laws of the land. Schmitt’s political theory was not hampered by the divisive nature of liberal democracies where every law was subjected to debate and discourse before it could be enacted. In the case of the Bush administration, the liberal society advocated a decisionist position that was contrary to the norms and standards of the country. Not only was the post 9/11 situation in a state of exception, so did the normative rule. The Constitution took a subordinate position. But unlike Schmitt’s model, the Bush administration acted more like the destroyer of the Constitution than its guardian. Under no circumstances did Schmitt suggest that the emergency state be evolved into a more permanent construct. The Bush administration made it appear that the PATRIOT Act was legally acceptable by asking the legislative and judicial branches to confirm the law hastily. The overwhelming majority decision and its completion at such a short time would make one suspect that eradicating the normal procedures had undermined the legal and political integrity of the Constitution. Contrary to the meaning of the term patriot, decisionist’s aims were “either more mundane—basic security and the enforcement of order—or more divine, as with those decisionists who see sovereign power as the divine essence realized on earth.”12 In a way, the Bush administration heeded Schmitt’s admonitions regarding the separation of powers advocated by liberal democracies. The emergency powers vested on the executive branch had far reaching implications in excluding the two major branches of government from decision-making in a state of emergency. To expedite the necessary, preemptive anti-terrorism measures, the administration took a radical path to implement the new rules. Public hearings and consultative meetings were eliminated. The administration, to justify their moves, legitimized the PATRIOT Act in the guise of a Congressional concurrence to the law. The fictional surrealism of George Orwell’s novel “1984” became a reality in contemporary American society. With the legitimate Patriot Act, the government assumed the omnipresent “big brother” that controlled the lives of the population. The blatant invasion of privacy and unrestricted access to information that were formerly protected by the Constitution only illustrated the extent of power that the Executive branch had attained in the course of implementing anticipatory measures against perceived enemies of the state. This maneuver concurred with Schmitt’s proposition that the expedient measures would eventually be legitimized if they were transformed into laws. The mechanisms that the original authors of the American Constitution had placed as a deterrent to potential abuse of power were surreptitiously removed. The Patriot Act had circumvented what was considered sacred and inalienable. Texas Republican Congressman Ron Paul observed that “[p]ersonal privacy, the sine qua non of liberty, no longer exists in the United States… The Patriot Act has given unbelievable power to listen, read, and monitor all our transactions without a search warrant being issued after affirmation of probable cause.”13 The scenario loomed darkly to extend to other countries as many of the people subjected to surveillance were non-citizens. The Guantanamo Bay provided a milieu where the United States extended its contentious argument of exceptions. In a White House Statement, the detainees of the facility were not subject to the Article four of the Geneva Conventions because the prisoners did not conform to the criteria established for POW’s. The government further argued that they violated no treaty because Al Queda members imprisoned in Guantanamo “[were] not covered by the Geneva Convention, and [were] not entitled to POW status under the treaty.”14 Johns (2005) posited that the Schmitt’s proposition on decisions under exception rules cannot be “subsumed by existing norms.”15 It was in effect in the facility. The procedures within the facility worked outside the extenuating covenants of the American Constitution and International treaties. Abdication of the Two Branches of Government When the Bush Administration invoked emergency powers as qualifying rationale to the assertion that the United States was at war, this effectively emasculated the other branches of government. The Office of the Legal Counsel (OLC) misguidedly advised the Chief Executive of the illegal disposition …for Congress to have passed the War Crimes Act99 and the Torture Act, criminalizing in American federal law grave breaches of the Geneva convention or torture committed abroad when done by U.S. nationals, because the president has complete control over the conduct of war.16 The OLC continued in its opinion that the Congress and the Courts would find it difficult if the two branches would insist on investigating the extralegal activities of the Executive branch. The Chief Executive can simply claim that the methods and strategies were simply a consequence of the administration’s “constitutional authority to protect the nation from attack.”17 Finding fault in the administration’s overreaching powers would be rendered as futile because both branches could not initiate criminal investigations into the excesses of the exception rule. The Commander-in-Chief had veto powers to shoot down any attempts to curtail its emergency powers similar to those experienced during the Wilson years. Wilson successfully repulsed the efforts of Congress to put a leash on his emergency powers. Although the Congress voted almost unanimously 343-to-3, the legislation was silenced when President Wilson vetoed it.18 The same story goes for the Judiciary branch as the majority would concede to the wishes of the administration. The American courts upheld ”the use of material witness warrants as a sort of preventive detention… the abandonment of the Fourth Amendment “ through the special jurisdiction of the Foreign Intelligence Surveillance Court of Review.19 In fairness, it is too drastic to judge that the two branches have abdicated their checks and balance function in government. In reality, it was in the structural and contextual nature of the Constitution that allowed the Chief Executive to summon emergency powers. This presumed omnipotence gave the two branches inadequate measures to counter the perceived abuse of power. That opinion was even subjective because to what extent would an act be deemed overzealous? Given the fact that the decisionist method advocated by the administration had rendered the statutes that would limit such excesses inutile, the two branches had no other recourse but to be more vigilant and consistent in their policies. In the end, the Draconian methods of the administration would eventually overwhelm the population and that would signal the demise of the true meaning of democracy in American society. Bibliography Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. (Stanford, CA.,Stanford University. 1998). Chang, Nancy. The USA PATRIOT Act: What’s so Patriotic About Trampling on the Bill of Rights? (November 2001) Dyzenhaus, David. Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford, Oxford University Press. 1999). James S. Brady Briefing Room. Statement by the Press Secretary on the Geneva Convention (May 2003) Johns, Fleur. Guantánamo Bay and the Annihilation of the Exception. The European Journal of International Law 16 (4) (2005) pp. 613–635. Lazar, Nomi Claire, Must Exceptionalism Prove the Rule? An Angle on Emergency Government in the History of Political Thought, Politics & Society, 34 (2) (June 2006) pp. 245-275. McCormick, John. The Dilemmas or Dictatorship: Carl Schmitt and Constitutional Emergency Powers in Law as Politics: Carl Schmitt's Critique of Liberalism. David Dyzenhaus – (ed) (Durham, NC, Duke University Press.1998) pp.217-251. Neumann, Volker. Carl Schmitt in Weimar: A Jurisprudence of Crisis Arthur J. Jacobson and Bernhard Schlink – (eds) (Berkeley, CA., University of California Press.2000). pp. 280-312. Paul, Ron. Trading Freedom for Security: Drifting toward a Police State. Mediterranean Quarterly (Winter 2003), p.6-24. Paye,Jean-Claude. A Permanent State of Emergency. Monthly Review. 58 (6) (November 2006); pp.29-37. Schepele, Kim Lane, North American emergencies: The use of emergency powers in Canada and the United States International Journal of Constitutional Law, 4 (2) (Apr 2006) pp.213-243. Read More