Thus I use the term ‘state of exception’ to make clear a set of political and juridical phenomena which we are trying to define. This term, which has come from the German tradition, is Ausnahmezustand. This term is extraneous to the French or Italian scholars who prefer to speak of …… [in a language I cannot understand] or in the Anglo-Saxon tradition the corresponding terms are ‘martial law’ or ’emergency powers.’ In this sense the choice of the term ‘state of exception’ involves taking a position with respect to the very nature of phenomena. For instance the ‘state of siege’ or ‘martial law’ expresses of course a relation to war, the state of war which has always been important in the origin of this institution. But they show in the final stage to show themselves to be inaccurate as to the fact and stage of the [illegible]. That’s why it is necessary to have a state of siege, political fictitious state of siege etc. The state of exception is not a special juridical order (the law which regulates the state of war,) rather it is a suspension of the whole juridical order itself which marks it for the limits, the threshold of the juridical order. It is for that reason that in public law there is not such a thing as a theory for the ‘state of exception.’ Although the proximity between the state of exception and sovereignty has been established by the German jurist Carl Schmitt in his 1922 book ‘Political Theology,’ his obvious definition of the sovereign as the ‘one who decides on the state of exception’ has been widely debated. Nevertheless the jurist could continue to ignore this phenomena and treat it more as a quaesti facti than as a true juridical problem. According to opinions which are very common, the ‘state of exception’ constitutes a point of imbalance between public law and politics which, like civil war, insurrection and resistance, is located in an ambiguous zone at the border between the juridical and the political. But precisely for that reason it seems to me that the question of the state of exception’s limits becomes particularly urgent.

Giorgio Agamben. The State of Exception – Der Ausnahmezustand. Lecture at European Graduate School. (1)
http://www.youtube.com/watch?v=dW5hl0-w7P8
http://www.egs.edu/faculty/giorgio-agamben/articles/the-state-of-exception/ (This is a transcript of the lecture but the link does not always work.)

Does the perpetuity of the state of exception necessitate the perpetuity of revolution? Thomas Jefferson thought that “no society can make a perpetual constitution or even a perpetual law” and “every law, naturally expires at the end of 19 years. If it is to be enforced longer, it is an act of force, and not of right.”(2) In excerpts from Giorgio Agamben’s article, “State of Exception” he states:

The textual basis of the conflict lies first of all in Article 1 of the constitution, which establishes that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” but does not specify which authority has the jurisdiction to decide on the suspension (even though prevailing opinion and the context of the passage itself lead one to assume that the clause is directed at Congress and not the president). The second point of conflict lies in the relation between another passage of Article 1 (which declares that the power to declare war and to raise and support the army and navy rests with Congress) and Article 2, which states that “the President shall be Commander in Chief of the Army and Navy of the United States.” (3)

A Brief History of the State of Exception (4)
http://www.press.uchicago.edu/Misc/Chicago/009254.html

The state of exception is not merely an exception to the “Writ of Habeas Corpus” in the US Constitution which would apply only to American citizens. While Habeas Corpus has a history much longer than the history of the United States, the notions embodied in the US Constitution of democracy (rule by the people) goes all the way back to the Greeks. For Jefferson, the Constitution embodied a living constitution of a society of people committed to the Enlightenment ideals of individual freedom, equality and government by the people. John Locke, one of Jefferson’s mentors, wrote extensively on liberty and the social contract theory. (5) Immanuel Kant thought that a democratic government would make war less likely:

…if the consent of the citizens is required in order to decide that war should be declared (and in this constitution it cannot but be the case), nothing is more natural than that they would be very cautious in commencing such a poor game, decreeing for themselves all the calamities of war. Among the latter would be: having to fight, having to pay the costs of war from their own resources, having painfully to repair the devastation war leaves behind, and, to fill up the measure of evils, load themselves with a heavy national debt that would embitter peace itself and that can never be liquidated on account of constant wars in the future.

Perpetual Peace: A Philosophical Sketch (6)
http://www.constitution.org/kant/perpeace.txt

Jefferson thought that the US Constitution would be a model for the rest of the world. He hoped it would change the world for the better. However, he also feared that the Federalist tendency could erode the rule of the people which is why he advocated a revolution every 19 years. The fear of Jefferson was the fear of the state of exception. The state of exception includes but is not limited to Habeas Corpus. It really asks a larger question, “Can any constitution be constructed such that liberty and justice are essentially protected?” For Jefferson and Agamben the answer is, no. Jefferson, like Walter Benjamin, thought the only answer was a perpetual revolution of the people.

The whole constitutional question and in a larger sense, how any kind of constitution could democratically protect a nation from going to war, that would be “of the people”, seems to be an impossible task. This is a very good article concerning the US constitutional question on the initiation of war:

The war on terrorism and the modern relevance of the Congressional power to “declare war” (7)
http://www.allbusiness.com/legal/3585740-1.html

In the conclusion the author notes:

Where does all of this leave us? What, if anything, is left of the power of Congress to “declare War?” I submit that it is largely an anachronism, because the kind of aggressive uses of force historically associated with formal declarations of war, which the Framers seemed most concerned about checking with a congressional veto, have now been outlawed.

The defensive need for swift action in the case of aggression is a clear case in which the will “of the people” cannot be conclusively established before the commitment of troops and possibly years of war have been initiated by the Executive branch. The article cited above also establishes other nuances of this situation that appears to have also mystified the framers of our Constitution. The general thought based on the framers and their mentors was that defensive military action must reside with the Executive branch but offensive action should include the Congress. However, as the above article cites, this can get murky too. This seems to me to be a clear case where there is no democratic resolution possible and opens up the rift that is aimed at the notion of the state of exception.

The use of the state of exception has been used liberally by Democrats and Republicans but in recent times more liberally by Republicans. Here are some examples:

1. The Patriot Act of George Bush (8)
2. The suspension of a right to trial (Habeas corpus) at Guantánamo Bay, Cuba (9)
3. Dick Cheney’s defense of torture based on “national security” and Abu Ghraib (10)
4. Justification for the wars in Iraq and Afghanistan (10)

Wendell Kisner in his article, “Agamben, Hegel, and the State of Exception” discusses two thinker’s resolution to the problem:

Carl Schmitt’s approach is to try to annex the state of exception within the juridical order itself. The difficulty here is that one then has a juridical order that includes a provision regarding its own suspension (insofar as the state of exception suspends the rule of law), making it difficult to make sense of how a legal order can govern, ‘legally’, the state of exception in which that very order is deactivated, as well as how any legal limitation can be applied to it.

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

Walter Benjamin’s approach is to always separate the state of exception from the juridical order, thereby ‘unmasking’ (as Agamben puts it) the ‘mythico-juridical violence’ that attempts to unify them in the service of the authoritarian state (SE 63). Benjamin wrote shortly before his death that ‘the tradition of the oppressed teaches us that the ‘state of exception’ is the rule’ (cited in SE 57). Agamben follows Benjamin here and suggests that, because the state of exception is the ‘anomic’ space from which any legal order emerges at all, it is no longer even possible to return to liberal democracy: ‘From the real state of exception in which we live, it is not possible to return to the state of law, for at issue now are the very concepts of “state” and “law”’ (SE 87). Regarding the two possibilities exemplified by Schmitt and Benjamin, he then concludes,

As mentioned above, beginning from the state of exception, it is not predetermined which way it will go and so the risk is great. Will revolution bring a more just political order or a more oppressive totalitarianism?

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

The debate of the state of exception seriously puts our constitutional government into question. Can the Constitution be suspended in times of “emergency”? What constitutes an emergency? Couldn’t this be a slippery slope that could be used for looser and looser situations and ultimately make a mockery of “due process”? Would the Constitution then be simply smoking mirrors for totalitarianism? Could Plato have this in mind when he wrote in “The Republic”

This and no other is the root from which a tyrant springs; when he first appears above ground he is a protector.

http://www.constitution.org/pla/republic.txt

Dr. Kisner suggests that Hegel poses a possible way out of the dilemma. He first seems to make the suggestion that the distinction between constitutional order and the state of exception is a necessary kind of symbiotic relationship that is brought about by limitation and the refusal of limitation which he and Hegel call “negative freedom”. Writing of freedom he states:

Insofar as that demand requires abstraction from all particular determinacy in order to first become self-determining and thereby free, however, it requires abstracting from the very historically determinate conditions of its own appearance at a particular time and place in history.

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

He quotes Hegel:

The will on one side is the possibility of abstraction from every aspect in which the I finds itself or has set itself up. It reckons any content as a limit, and flees from it. This is one of the forms of the self-direction of the will, and is by imaginative thinking insisted upon as of itself freedom. It is the negative side of the will, or freedom as apprehended by the understanding. This freedom is that of the void, which … becoming actual it assumes both in politics and religion the form of a fanaticism, which would destroy the established social order, remove all individuals suspected of desiring any kind of order, and demolish any organization which then sought to rise out of the ruins. Only in devastation does the negative will feel that it has reality

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

It is almost as if we must create order to destroy it, to free ourselves from it as freedom dictates. Thus, the state of exception is a necessity of freedom. The will is on an essential mission to destroy itself to concretize its freedom. Order or the Forms (peros) must undo itself in chaos (aperion). The notion of the individual necessitates its destruction:

In archaic Roman law, the “state of exception” describes the juridical situation of homo sacer (sacred man), a human being who — for one reason or another — “may be killed but not sacrificed,” that is, someone who is no longer included in human society nor even covered by its most basic protections. Condemned to exist in a state of exception, the homo sacer can be killed by anyone, without a murder being committed. To Agamben, the striking thing is that this situation (which concerns the extra-juridical order) was inscribed within Rome’s juridical order. The rule and the exception to it became confused, indistinct: the exception now becomes the rule. The homo sacer is not simply excluded from society; he or she is also included into its “constitution,” its legal code. But he or she is included only as “bare life,” only as a body, a mere creature without political or “human” rights of any kind. This was a major historical development, which constituted “the first paradigm of the political realm of the West.” Prior to that, bare life (zoe in Greek) had not been “included in/excluded from” the politico-juridical realm, which merely concerned itself with bios (living in the polis as a citizen).

The Secret of George W. Bush’s Power: the State of Exception
http://www.notbored.org/state-of-exception.html

Thus “bare life reaches its maximum indeterminacy”:

The immediately biopolitical significance of the state of exception as the originary structure in which law encompasses living beings by means of its own suspension emerges clearly in the ‘military order’ issued by the President of the United States on November 13, 2001, which authorized the ‘indefinite detention’ and trial by ‘military commissions’ (not to be confused with the military tribunals provided for by the law of war) of noncitizens suspected of involvement in terrorist activities […] What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to Americans laws. Neither prisoners not persons accused, but simply ‘detainees,’ they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager (camps), who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews. As Judith Bulter has effectively shown, in the detainee at Guantanamo, bare life reaches its maximum indeterminacy.

State of Exception (12)
http://www.notbored.org/state-of-exception.html (quoted here)

In “negative freedom”, freedom is an anarchism that separates form and content. It has no content, no order to replace the limitations of constitution and exception with; it can only tear away at the ground, the foundation of law within the form of law. This sounds like a Derridian deconstruction but Dr. Kisner relegates post-modernism to a maze of relativism that apparently must feast on the absolute as exception feeds on the Constitution.

In true Hegelian fashion Dr. Kisner retrieves a positive from a negative:

Therefore negative freedom is a standing contradiction: its very character as negation of limit is itself its limit. Alternatively stated, its very flight from all content is its content. The abstractive move of the state of exception itself is its own positive character. But this in turn means that negative freedom negates itself as absence of limits. It is defined as absence of limits. But insofar as this is its limit, this negates its character as absence of limits. We do not need to merely oppose a better concept of freedom to it, as do Rousseau and Kant. Negative freedom is not negated by some other concept of freedom but by itself. To put it another way, the state of exception is not overcome by some other juridical order that is imposed upon it or which has to annex it in advance. Rather, its own negativity as the suspension of all normativity/juridicality is itself negated by the positive character that this very negation is.
…
Insofar as it negates all limit, negative freedom is negative. But insofar as this flight from limit is its own limit, it has a positive character. Thus insofar as the will is nothing other than the willing of freedom, the will now wills this positive character. The step is certainly minimal, but a subtle shift has occurred from willing the absence of limit to willing a limit, even if that limit be nothing other than the very willing of the absence of limit. We’ve moved from a will that wills nothingness to one that wills its own positive character, and hence from willing nothing to willing something.

But this is self-determination in its most germinal form. The abstraction from all limit abstracts from every externally imposed or pregiven determinacy. But that very movement reveals its own determinacy as such abstraction, and hence it is only now in a position to will itself as freedom. The limit it now wills is its own limit rather than a pregiven one, and hence it has ‘given itself’ that limit or, to look at it another way, is submitting to the limit that it is. Insofar as it submits to its own limit, it gives its limit to itself or is self-determining. Thus from out of the suspension of law a self-imposed law emerges. This is not yet the fully explicit legal system of a juridical order, of course, but is the minimal limit out of which any such legal order must emerge if it is to be self-determining and thereby free. It is from here that we can get from Rousseau’s natural freedom to a freedom defined as ‘obedience to the law one has prescribed for oneself’.

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

So the state of exception is the movement of spirit that creates content, it historicizes a Constitution to overturn it. When we understand this conundrum we no longer are externally compelled to keep the law, we can become the law; have the law written in our hearts as Paul might suggest.

Freedom has here gained a greater degree of concreteness over the merely abstract universality characterizing a will that, in rejecting all limitation, winds up being an empty formality devoid of content. An abstract universal is one that is other than its particular content—the separation of form from content is what makes it abstract. Once we take the step to a will that wills itself, to a freedom that has itself for its content, then we have a concrete universal—the concrete universality in which the form of freedom is the same thing as its content. What the will henceforth must do in order to be free is not to withdraw from all determination but to determine itself. A freedom that wills itself universally is what Hegel calls a ‘right’.

Agamben, Hegel, and the State of Exception (11)
http://www.cosmosandhistory.org/index.php/journal/article/view/77/154

It seems to me that the notion of “externally imposed” gets added into the argument at a critical point such that now the argument is shifted from a sort of viscous circle between Constitution and state of exception to a conflict between will and “negative freedom” or by extension between me and the other. The “external” would then be “negative freedom”, the other. Reminiscing of Emanuel Levinas, the other undoes the totalizing of will, has meaning beyond “me”, beyond being (ontology) – meontology (me-on). If the other turns out to be me then the conflict is resolved and we can all walk away happy – Tat tvam Asi. However, can we think of a resolution in terms of the self-determination? How does this change the four examples I cited above of the state of exception? Doesn’t this internalization of the conflict at the least enable a sort of bourgeois perpetuation of the status quo? Perhaps a Hegelian, guru-like state of enlightenment ushers in a hard earned ‘right’ but have all the issues been resolved? Even if Hegel is absolutely right and has concretized the universal, is everything done? We still have Dick Cheney and Abu Ghraib. Have we silenced the cry of those victims or at least made them “understandable”? Do we have to misunderstand Hegel to care about the conflict in the Constitution and the state of exception? Do we have to lapse into an external (negative freedom) versus internal (will) dialectic?

What impact does this, “What the will henceforth must do in order to be free is not to withdraw from all determination but to determine itself” have on the original problem of Constitution and state of exception? Should we take this as an admonition not to withdraw from the dilemma but to approach it with a deeper understanding of how we “willed it thus” as Nietzsche might suggest? Is the suggestion that a shift from what “they” are doing (and the moral high ground it affords) to what I am doing as self-determined somehow erases the dilemma? Does a “concrete universal” change or alter the dilemma in some discernable way? What results from understanding the cause?

While Dr. Kisner asks us to consider the real nature of the dilemma and thus find some sort of resolve we could also ask, “What does it matter?” What effect is produced by asserting the cause? It certainly does not make Guantánamo go away. Perhaps it does help erode our concern over doing something about Guantánamo. It seems to me that a dialectic is called for on the external and internal. However, that could easily land us into Cartesian Dualism, the old mind/body, subject/object dilemma. Can we use a dualism (external/internal) to resolve a dualism (Constitution/State of Exception) or have we simply obscured and shifted the argument cleverly? Are we essentially obligated by the suffering of the other or are we only called to internalize it? What kind of world-philosophy would internalize the dilemma or as Levinas might suggest totalize it? Haven’t we lapsed into a sort of self-determining totalization albeit of our own essential making? It almost looks like an anti-materialization, a resolution of Spirit, self-determination gone absolute. Spirit has gathered itself as itself and as Paul suggests “For from him and through him and to him are all things” with “Him” being us – an Occidental, Vedantic koan. It just seems to me that out in the hinter land howling wolves still mark the lost graves of the damned.

It also appears that a resolution to the state of exception as “self-determining” misunderstands the violence that Agamben and Benjamin are aiming at in the tension of law and lawlessness (anomie). Law and violence are not subsumed or synthesized (aufhebung, lifted up, sublated) such that they are both preserved in their transformation. The brute facts of violence, its horrific immediacy, its irrecoverable loss, its senselessness nevertheless retain their significance in relation to law. Without law, violence would merely be a random act of nature without consequences, without significance. Both law and violence are essential to each other. The power of the Executive inchoately, essentially carries with it, the intent of the despot for war and violence. It cannot be regulated by law or constitution but must exist alongside it as a necessary component of a democracy. Its violence and potential for abuse cannot be dulled or transformed unless invasion, torture, collateral damage and war can be thought in different terms that violate their meaning. They can be totalized. By totalized, I mean put into a higher context that essentially loses its immediate impact, its brute force (allusion to Derrida – force of law). Totalizing causes these horrific acts to lose something about them that we should not and cannot lose (without violating it beyond recognition). I find Levinas’ discussion of the saying and the said to have an odd kind of ambience here.

The violence of the said, the totalizing of the said, that narcissistically substitutes itself for saying. It violently abolishes the anachrony of the other. In so doing it does not transform the saying but re-presents it as determined. As such, it inscribes the other into its own orb, the orb of sameness. In this moment the other is negated, lost, obviated and violence asserts itself once again. However, the face of violence is now bourgeois; the slave is property, the Jews as “bare life reaches its maximum indeterminacy”. The result of this is that ethics (as Levinas thinks it) cannot be transcended, synthesized or lifted up beyond itself. If it is “self-determined” it is really only lost and relegated to the hinter land. It is interesting to note that if we were drawing parallels the said would be related to law and the saying would be related to violence. Could it be that the interruption of the face of the other violently displaces me, breaks the plastic molds I make of the face of the other (in Levinas’ words)? Horrific violence is a result of the loss of Ethics (as Levinas envisions it). Could it be that death is the final violence that disrupts the said, the nomus (law) of being? Would this mean that violence as the disruption of totality turns in on itself and lashes out at the absolute alterity (otherness) of the other in rage and lawlessness?

With archaic passion for survival the will, the Executive, is pitched in a desperate effort to re-establish itself, its dominance, it takes on a psychopathic revenge for life. The force of non-being (me-on) is re-presented as the abyss, the void. The disruption of the other that puts me and mine into question rolls in as a fog over the void. A pathological need washes over beings, the totality of ‘Being’, to uphold order over chaos, to reestablish law over lawlessness, totality over alterity, and restore ‘Being’ from its corrosive demise. The heroic as the Executive must gather itself. In the face of absolute threat, the Executive is roused with infinite passion to reclaim its origin (arche), its right to be as self-determined. Agamben makes the state of exception sound like a vortex, a black hole, a center that defies all the known laws of physics, is void of any real determination including “self-determination”:

This debate takes place in the same zone of anomie, of lawlessness that on one side that must be kept at any price in relation to the juridical order and on the other hand must be freed on the contrary from this relationship. What is at stake in this zone of anomie is the relationship between violence and the law. That is to say that the state of violence is a cipher of human action. To Schmitt’s gesture that tries each time to re-scribe the violence in the juridical context Benjamin responds by showing to violence for pure revolutionary violence in existence outside any juridical order. Interesting for some reason you have to understand the fight for anomie, for lawlessness, seems to be, for Western politics and juridical tradition as decisive for Western metaphysics (the child’s struggle about being ….[indistinct]) To pure existence as a physical wager corresponds here pure violence as the ultimate political object. To the ontological strategy that tries to capture being in lawleess language corresponds to a strategy of exception which must establish and conserve the relationship between violence and law. It is as if both law and lawless language are in need of an anomic order (a logic zone of suspension) in order to ground their reference to world and life. Law seems to be able to exist only by grasping anomic lawlessness in the same way that language can only exist by grasping a [known quest?]. In both cases, the conflict concerns (a very peculiar) empty space. On one hand anomie, the juridical void, and on the other pure being being void of any real determination. For the juridical order the empty space is precisely the state of exception as its constitutive action.
Giorgio Agamben. The State of Exception – Der Ausnahmezustand. Lecture at European Graduate School. (1)
http://www.youtube.com/watch?v=dW5hl0-w7P8
http://www.egs.edu/faculty/giorgio-agamben/articles/the-state-of-exception/ (This is a transcript of the lecture but the link does not always work.)

Ethics as the absolute alterity of the face of the other must always return as tides on the sands to the desperate battle for self-determination, for any kind of determination. The Hegelian lifting up (13) of terms is the transformation of alterity to sameness. It is the re-establishment of self, the self AS self and other, law and lawlessness, judicial and Executive. Otherness must essentially drop out and thus, violence is destined to be the future of ‘Being’. The tides of once again, samsara are fates from the future that can only mercifully be absolved in the finality of death. Tragically, in the land of the living, the progeny of the past is the desperate violence for the eradication of the other.

——————————————————————————————————————————-

Notes

(1) August 2003. Transcription by: Anton Pulvirenti
(2) “no society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation.”…”Every constitution then, and every law, naturally expires at the end of 19 years. If it is to be enforced longer, it is an act of force, and not of right.” Thomas Jefferson To James Madison Paris, Sep. 6, 1789
http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl81.htm
(3) Even if congress does need to approve exceptional cases and keep the executive branch on a “short leash” look at what happened when the congress approved the intervention in Iraq (here are the votes http://mixermuse.com/blog/2010/01/02/nearly-every-member-of-congress-voted-for-intervention-in-iraq/). As the votes indicate Democrats had more problems with it than Republican’s but many Democrats voted for it for purely political reasons. So even though theoretically the legislative branch (and the judicial branch by extension) has reasonable checks and balances to executive abuse the reality is a very different story. I remember the intervention in Iraq and Afghanistan as a congressional “rubber stamp” to Bush. In times where the president commits us to war with troops already engaged in conflict (without official decree of war) most politicians do not display a concern for the Constitution but a concern for their political survival (I note Obama’s recent statement on the mosque in New York as a notable exception). History is replete with examples of how both parties were more concerned with their jobs than balancing abuses of the executive branch. It seems to me that this is a giant loop hole that effectively dismantles Constitutional mechanisms and indicts our whole democratic, Constitutional form of government.
(4) Excerpt from pages 11-22 of State of Exception by Giorgio Agamben, translated by Kevin Attell, published by the University of Chicago Press. ©2004 by the University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press.
(5) Locke, John. Second Treatise on Government (1689)
(6) Perpetual Peace: A Philosophical Sketch by Immanuel Kant
(7) By Turner, Robert F
Publication: Harvard Journal of Law and Public Policy
Date: Monday, April 1 2002
(8) “Another thing to do with the relationship between the ‘state of exception’ and law and life is the immediately biopolitical meaning of the ‘state of exception.’ It is an original structure by means of which law includes in itself living through this sort of suspension. I think it appears clearly in the military order declared by the President of the United States on November 24, 2001 which auhtorised the indefinite detention and trial by military commissions (not to be confused with the military courts)of citizens suspected of being involved in terrorist activities. The US Patriot Act was voted in by Congress in May, 2002, it allowed the Attorney General to detain anyone suspected of an activity which would threaten the national security of the United States. But in this case the alien had to be, after 7 days, either expulsed or accused of any violation of the law. So it was new in the military order of President Bush to completely cancel any juridical status of an individual. It thus produced a human being juridically unable (to defend him/ herself). Taliban capture in Afghanistan cannot be protected by the status of a prisoner of war according to the Geneva Convention. They cannot be accused even according to American law. Neither prisoner nor accused but only detainees are the object of a purely factual sovereignty completely outside the law. The only possible comparison is the juridical situation of the Jew in the Nazi Lager. They had lost not only citizenship but any juridical identity.”
Giorgio Agamben. The State of Exception – Der Ausnahmezustand. Lecture at European Graduate School. August 2003. Transcription by: Anton Pulvirenti
http://www.egs.edu/faculty/giorgio-agamben/articles/the-state-of-exception/
(9) “Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.” –Thomas Jefferson to James Madison, 1788. ME 7:97

“The following [addition to the Bill of Rights] would have pleased me:…No person shall be held in confinement more than days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than hours in any place of a greater distance than miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than miles distant from the station or encampment of enemies or of insurgents.” –Thomas Jefferson to James Madison, 1789.
(10) See http://www.markdanner.com/orations/show/213?class=related_content_link
The Politics of the Forever War: Terror, Rights, and George Bush’s State of Exception (transcript)
The 2006 Remarque Lecture, New York University
by Mark Danner
(11) Cosmos and History: The Journal of Natural and Social Philosophy, Vol 3, No 2-3 (2007)
(12) Stato di eccezione (2003, translated into English as State of Exception by Kevin Attell and published by Stanford University Press in 2005)
Giorgio Agamben
State of Exception
Translated by Kevin Attell
©2005, 106 pages
Cloth $30.00 ISBN: 978-0-226-00924-7
Paper $13.00 ISBN: 978-0-226-00925-4
(13) Even Hegel died and was not lifted up as some of his disciples would like ;-).

Please note that this article will be updated and changed as I do more research and hopefully, get feedback from others – everything on this site is a work in progress.