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,
To live in the state of exception means to experience both of these possibilities and yet, by always separating the two forces, ceaselessly to try to interrupt the working of the machine that is leading the West toward global civil war (SE 87).
And thus:
The only truly political action, however, is that which severs the nexus between violence and law. And only beginning from the space thus opened will it be possible to pose the question of a possible use of law after the deactivation of a device that, in the state of exception, tied it to life (SE 88).
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.
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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.
Re: Hegel and The State of Exception
« Reply #42 on: Aug 16, 2010, 6:38pm » Quote
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Yeah if we were dedicated to stopping every humanitarian crisis in the world we would go broke at a much faster pace than we already are.
On Aug 16, 2010, 3:28pm, Ian Jeffrey Slavin wrote:Based on what? Whoever saves a life, it is as if he had saved a world. I would think that is more important than any other bills that may be due.
I have to agree with Mark, after seeing how costly the Iraq and Afghanistan wars have been I think its rather clear that we cannot afford to be the worlds keeper, no matter how noble the arguements are for it.
On Aug 16, 2010, 3:28pm, Ian Jeffrey Slavin wrote:How is this relevant? And do they “deserve” that opportunity at the expense of others’ lives, because we were unwilling to step in & preserve those lives?
In short “yes,” we have a responsibility to “our postarity,” we are not responsible for the lives and livlihood’s of the entire world but we are responsible for the country we leave to our children.
With additudes like that it’s no wonder the deficit has been setting new records year after year for a decade.
Re: Hegel and The State of Exception
« Reply #41 on: Aug 16, 2010, 3:45pm » Quote
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On Aug 16, 2010, 3:29pm, Liberty4TheWin wrote:If we were invading countries for solely humanitarian reasons we’d be at war with nearly the entire Middle East and Africa.
This is true, we would definitely have been in Liberia — Rwanda was a travesty and we dilly dallied on Yugoslavia a little, even though we eventually came around. Let’s face it, we can’t divorce US Middle East policy from oil, its impossible.
Re: Hegel and The State of Exception
« Reply #39 on: Aug 16, 2010, 3:29pm » Quote
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On Aug 16, 2010, 3:14pm, markdart wrote:Well, if we could have invaded, toppled Saddam and left right away we would have, don’t you think?
If we could have we probably would have but I suspect some high ranking government officials decided that it was in America’s best interest to ensure a reliable supply of oil.
On Aug 16, 2010, 3:14pm, markdart wrote:You must disagree with Ian because he thought it was for humanitarian reason.
Well I wasn’t in the room when the decision was made but I would wager that was an ancillary effect of the invasion which may or may not have weighed in on the ultimate decision. It is possible that the administration at the time thought that the conflict could be spun for humanitarian reasons and possibly buy international good will but if that were the only reason that would have been a horrendous folly; if I had $5 and an unprecedented amount of international good will I might be able to buy a cup of coffee.
If we were invading countries for solely humanitarian reasons we’d be at war with nearly the entire Middle East and Africa.
Re: Hegel and The State of Exception
« Reply #38 on: Aug 16, 2010, 3:28pm » Quote
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Mark wrote:So let’s get this right, the loser whines; the winners rule…right? Sounds like the Darwinian marketplace of politics.
Well, the losers don’t always whine, upset though they may be at losing. But the fundamental principle of a democratic system is that the majority rules. In a manner of speaking, then, your allusion to Darwin is somewhat accurate, though part of the system is that the majority may not invade the rights of the minority; and that the minority has the right to attempt to become the majority, things that are absent from a strict Darwinian approach.
Mark wrote:This diverges from your “humanitarian invasion” values on the surface.
Not really … it just means that without the power to get anything done, such an invasion would ultimately be fruitless.
Mark wrote:You can tell yourself you are really a humanitarian … but your belief does not a truth make.
Nor does the mere gainsaying of it, either.
Mark wrote:Many folks in the rest of the world are not convinced either.
So? It’s not a matter of opinion, but a question of fact. And sovereignty is no justification for allowing blatant human rights violations.
Mark wrote:I despise paying taxes under these circumstances as it is taxation without representation (in the case of commitment to war). This IS a systemic problem no matter how much you wish it were not.
Quite the contrary, it’s not “taxation without representation” just because you don’t like the taxation.
Mark wrote:We are giddy in Colorado that Tancredo is running on the American Constitution Party for Governor.
So am I, as it means it could split the Republican vote and elect the Democrat.
Mark wrote:To suggest we got involved in WWII primarily for “humanitarian” reasons is revisionist history.
I didn’t suggest we did any such thing. However, the fact that we did not enter the war for humanitarian reasons doesn’t mean we didn’t act in a humanitarian fashion, or that the war was not a humanitarian effort. The motive does not change the truth of the matter.
Mark wrote:Do you know that many in Iraq and Afghanistan look at us as invaders and only reinforce enemy combatant claims?
Yes, those being denied the power to commit rampant murder and other brutal oppressions.
Mark wrote:1. The will of one (the President) to commit us to war when our survival is not threatened is not “of the people” and is a systemic problem.
We already have laws giving Congress the power to prevent it. That they refuse to exercise it on any given occasion – or several occasions – is a political problem, not a systemic one.
Mark wrote:3. We cannot afford to be the world’s keeper.
Based on what? Whoever saves a life, it is as if he had saved a world. I would think that is more important than any other bills that may be due.
Mark wrote:4. Our kids deserve the opportunity to grow up and have a life.
How is this relevant? And do they “deserve” that opportunity at the expense of others’ lives, because we were unwilling to step in & preserve those lives?
Mark wrote:I thought Bush should have been talking about bringing these thugs to justice not hanging them high. I think Bush hyped up the war rhetoric (probably because of his dad’s perceived failure) and manipulated the system and many folks into hysteria.
This I do not dispute. But it doesn’t make our involvement wrong, only poorly executed.
Re: Hegel and The State of Exception
« Reply #37 on: Aug 16, 2010, 3:14pm » Quote Modify Delete
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Well, if we could have invaded, toppled Saddam and left right away we would have, don’t you think? If we would have left and millions were killed in a civil war we would have been responsible. Once we went in, there was no pulling back as Colin Powell rightly told the President. If we made the decision for us and no one else we would not have invaded because obviously it was not right for us. You must disagree with Ian because he thought it was for humanitarian reason. My sister from the Deep South actually told me we went in there to tell folks about Jesus and get them saved – scary…
Re: Hegel and The State of Exception
« Reply #36 on: Aug 16, 2010, 3:02pm » Quote
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On Aug 16, 2010, 2:26pm, markdart wrote:We were committed to nation building by the lunacy of our response.
Were we? I don’t think American “owes” anyone anything. Now if you want to make the argument that nation building was what was in the best interest of America at that point then that’s an argument I’ll entertain.
We, like very other country in the world, must make decisions to arrive at the best outcome for us and no one else. If someone else benefits from our decision then that’s their luck. If supporting another country is in our best interest then we should support them for that reason and that reason alone.
Re: Hegel and The State of Exception
« Reply #35 on: Aug 16, 2010, 2:26pm » Quote Modify Delete
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Liberty4TheWin wrote:Afghanistan was undeniably necessary; we were attacked by a group of people being protected by the regime. We had no choice but to retaliate.
Sure we had to do something but war was the wrong decision. Remember Russia? If nothing else, worst case, you go after a relatively small group of international criminals with Special Forces, CIA, mercenaries, etc. As it is, our strategy was the greatest recruitment tool for Al Qaeda. Again, I am not debating involvement only strategy.
Liberty4TheWin wrote:In Iraq we were on a collision course with Saddam and as Craig has illustrated in his timeline above eventually we had to call Saddam to the carpet.
A country the size of Texas with all the ethnic divisions of Iraq was not an issue that had to have a military invasion. If need be, the despot could have been taken out with one bullet. Don’t you see once we commit our military we broke it and we owned it? We could not simply pull out with this sort of response. We were committed to nation building by the lunacy of our response.
Re: Hegel and The State of Exception
« Reply #34 on: Aug 16, 2010, 2:12pm » Quote
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I think both invasions were inevitable.
Afghanistan was undeniably necessary; we were attacked by a group of people being protected by the regime. We had no choice but to retaliate.
In Iraq we were on a collision course with Saddam and as Craig has illustrated in his timeline above eventually we had to call Saddam to the carpet. I think people forget the mindset of the country in the years following 9/11, we had just been attacked and we weren’t going to take that chance again. No matter how faulty the intelligence was I think most of us would have chosen to air on the side of taking Saddam out rather than taking even the most minimal chance that he may have actually had the means to put into motion 9/11 v2.0.
Where the mistake was made was the idea that we can bring Democracy to anyone through nation building. That’s been an incredibly costly and expensive mistake.
Re: Hegel and The State of Exception
« Reply #33 on: Aug 16, 2010, 1:53pm » Quote Modify Delete
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Agreed, there are differences. I do not think Ian is “pro-war” but I think he is probably trying to rationalize and stretch logic a bit. It strains credibility in light of certain nagging facts of the situation. Also, I was opposed to the strategy from the beginning not necessarily involvement. I thought Bush should have been talking about bringing these thugs to justice not hanging them high. I think Bush hyped up the war rhetoric (probably because of his dad’s perceived failure) and manipulated the system and many folks into hysteria. We had the world’s favor on our side after the tragedy and blunder and mistakes turned world opinion against us. The question we should really ask ourselves is how did this come about and how can we prevent this in the future.
Oh, we should have thought ahead of time, reflected on history and understood the indigenous situation to prevent the “MORPHED” effect. Before we commit ourselves to war we need to have intelligence so we can anticipate – this is not rocket science if even I can do it.
Re: Hegel and The State of Exception
« Reply #32 on: Aug 16, 2010, 1:35pm » Quote
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Mark, I think if you read Ian’s posts, you’ll find that he is hardly pro-war by any stretch of the imagination. At the time of the invasion I happened to support the invasion (despite the fact that I am an isolationist at heart because a lot of things in the international sphere occur and you kind’ve get an opinion on them GIVEN that we are not an isolationist country to begin with). The only real point that I am trying to make with respect to the decision to invade was that it wasn’t an ‘arbitrary’ decision, there had been a long, antagonistic history between the two nations along with serious malfeasance by Sadaam Hussein.
After the initial invasions of Afghanistan and Iraq, the conflicts have slowly MORPHED into something completely different; and that is something that we, as a nation, truly DO need to be introspective about {the limits of American militarism to enforce the Pax Americana} because the history from the start of both invasions until today is hardly a heart warming story.
Nevertheless, the subsequent history and the body count and the expenses which have piled up, don’t make the initial decision arbitrary or necessarily a ‘wily nily’ decision. Subsequent history may even prove that the decision was, on the whole a ‘bad one’ {I think at least part of the blue wave in 2008 can be attributed to a perception in the American public that the conflicts AREN’T going well). Ultimately that is going to be a question for the historians and we’ll start narrowing in on the answer years after the last US soldier leaves. I just don’t want people to think that this was Germany storming into Poland 9/1/39….
Ian wrote:Actually, in many ways we are [the world’s keeper]… Actually, we have that superiority. Just look at the morals of the countries we invaded recently… Which is why the trick is to help them get a constitution in place that prevents this. Ever read Iraq’s new constitution?… Trouble is, the despots kill the opposition before this can happen… It is immoral to stand by and watch another person be killed just because “it’s not our problem.”… one’s likelihood of being killed by one’s own government there was dramatically reduced as a result of our invasion
Ok, first let’s try to get our facts right…
1. You state that “100,000 – 150,000 people died” over 20 years if you look at your dates. Did you know that easily 100,000+ died with the civil war we sparked when we invaded and the “collateral damage”. Do you know that many in Iraq and Afghanistan look at us as invaders and only reinforce enemy combatant claims? Do you know that the “coalition” was a joke and has eroded even among our firmest allies to an American pipe dream? Do you know that many folks in the world think that these wars are examples of American Imperialism? This is certainly evidence of YOUR quote, “MYTHOLOGY, n. The body of a primitive people’s beliefs concerning its origin, early history, heroes, deities and so forth, as distinguished from the true accounts which it invents later.”
2. Did you watch Petraeus on “Meet the Press” on Sunday. There is no Iraq constitution. They dismantled the constitution we wrote for them. That government no longer exists and they have not come up with a new government or constitution yet. Petraeus also expressed concern that the new government would not have minority representation and that this could spark whole new rounds of “humanitarian” civil wars (this was implied by what he stated). He also stated that we, the US, are going to have to relax our “humanitarian” standards as we did in Iraq to bring all parties in and in Afghanistan to negotiate with the Taliban.
3. Are you familiar with the CIA and their colorful history of orchestrating coup d’état?… not all justified but effective, low cost, very little unnecessary loss of life and we remained invisible so the victors and losers could not blame us effectively. We certainly know how to help oppositions to despots get their way.
4. I think you are underestimating the ethnic and racial hatred in other countries. If a majority of those in power want to exterminate the minority we really have no jurisdiction in their country, no trial, constitution, law enforcement. In Iraq the majority party had the power and the outcome was horrific. We started a war, wrote a constitution that included minority parties and they summarily dismissed it on our way out. 5000+ American kids died (in both wars). By the way, killings by the civilian and police population are still going on in Iraq – they simply went underground – keep your ears open for more. Sometimes I think you folks that are such “humanitarian” hawks have never been personally touched by war as I think it would give you more of a reality check on these situations.
Ian, you have made many shots off the bow but have not really responded to my argument. Here it is again in condensed form:
1. The will of one (the President) to commit us to war when our survival is not threatened is not “of the people” and is a systemic problem.
2. Our best “humanitarian” intentions may not be as pure as we like to believe…just listen to what many of the people we think we are “saving” are saying.
3. We cannot afford to be the world’s keeper.
4. Our kids deserve the opportunity to grow up and have a life.
5. Self-responsibility is not simply for the US. Other citizens in other countries need to take serious and ultimate responsibility for their future. We can help if need be but “freedom handouts” and “nation building” is really only our tragic foolishness and ultimately will destroy this country. History is replete with the corpses of great dynasties that spread themselves to thin and imploded.
Quote:Ian: Which is what, exactly … ?
Ian: Well, that’s up to us.
Mark: Actually, the point is that it is not. Etc…
Ian: Sure it is. Not just you and I as individuals, of course, but the people as a whole.
Mark: This is an ideal but ideals have a way of getting out of sync with reality. Etc…
Ian: Like what? We always hear about these “threats” every time we see a political result we don’t like. The only problems we really hear – and have no chance of really passing – are when the losers in the political marketplace want to change the system so they can win and their opponents can lose, claiming a political loss really indicates a systemic problem.
So let’s get this right, the loser whines; the winners rule…right? Sounds like the Darwinian marketplace of politics. Underlying this kind of analyses is might makes right, history is written by survivors, taxation without representation, etc. This diverges from your “humanitarian invasion” values on the surface. Although, it really is probably part and parcel of the whole analytic. The British thought of colonialization as humanitarian as they were stopping widow burning, foot binding, etc and bringing civil society to the natives, etc. Power not only corrupts absolutely but also blinds totally – it is narcissism. You can tell yourself you are really a humanitarian when you invade countries and kill hundreds of thousands (see comments below) not to speak of your own citizens AND alleged systemic issues are whining and no one will probably convince you differently but your belief does not a truth make. Many folks in the rest of the world are not convinced either. If either party can commit us to years of wars, spend money we do not have, kill our young kids, and incur “collateral damage”, spark civil wars with merely one person’s (the President) decision, you cannot call this “of the people”. I despise paying taxes under these circumstances as it is taxation without representation (in the case of commitment to war). This IS a systemic problem no matter how much you wish it were not.
Ian wrote:Well, this does come back to “economic voting,” as you suggested earlier.
It does not take much intelligence to realize the ramifications of this Ian. We are giddy in Colorado that Tancredo is running on the American Constitution Party for Governor. There is much weeping and gnashing of teeth in Colorado that sounds like music to our ears. No one suggested or implied that this was “fantasy”. To the contrary, that was certainly implied in my statement about political economy. You can “pronounce” this economy as the alleged “center” but it may also be thought of as what is produced by the political economy; all terms are reduced to their lowest common denominator…you think most people are thinking that Congress is made up our most wise, brightest and virtuous…keep smoking that stuff. I do not take a political economy that is imposed on us by the machinery of politics as statement of what most folks want – only the fact that most folks can recognize the obvious and vote accordingly.
Ian wrote:WWII was another, similar example, where getting into the war saved lives – how many more would have died in concentration camps if we hadn’t? You think that wasn’t a humanitarian war.
WWII was not a humanitarian war and it is really ludicrous to suggest it was. WWII was a war for survival. We would all be saying the pledge of allegiance to Hitler/Mussolini/Hirohito had we not been involved. After WWI no one in this country wanted to back to war. Pacifism (which I am not by the way – read my posts please) was rampant. Even Einstein, the great pacifist, was forced by necessity to endorse our involvement. Were there humanitarian results from the war? Absolutely…but that is not why we went to war. We went to war because that was our best bet at survival (i.e., with the allies). WWII was the last necessary war we fought IMO (see http://mixermuse.com/blog/2009/12/14/all-war-is-evil/). To suggest we got involved in WWII primarily for “humanitarian” reasons is revisionist history.
Re: Hegel and The State of Exception
« Reply #29 on: Aug 16, 2010, 12:50am » Quote
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Yes, a stance of pure pacification is not set in reality. Sometimes war is just, noble and good (i.e. the Allies in WWII).
Re: Hegel and The State of Exception
« Reply #28 on: Aug 15, 2010, 10:01pm » Quote
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Hardly, considering that one’s likelihood of being killed by one’s own government there was dramatically reduced as a result of our invasion. The presumption behind that reference is that all war is bad, including one whose fundamental character is to resist aggression.
Re: Hegel and The State of Exception
« Reply #27 on: Aug 15, 2010, 9:56pm » Quote
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On Aug 15, 2010, 2:34pm, Ian Jeffrey Slavin wrote:humanitarian invasion
That is a pretty good example of doublespeak (or doublethink if you want to reference 1984).
Re: Hegel and The State of Exception
« Reply #26 on: Aug 15, 2010, 8:30pm » Quote
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Mark wrote:This is an ideal but ideals have a way of getting out of sync with reality.
Which is what, exactly … ?
Mark wrote:{I}n theory everyone can change the system and everyone has infinite will power but in practice we are always working within compromises and limitations.
Sure, but so are the people in power everyone’s complaining about.
Mark wrote:If we ignore real threats at work within our system of government….
Like what? We always hear about these “threats” every time we see a political result we don’t like. The only problems we really hear – and have no chance of really passing – are when the losers in the political marketplace want to change the system so they can win and their opponents can lose, claiming a political loss really indicates a systemic problem.
Mark wrote:Conspiracy theories are for idiots. Who is suggesting that…
Wasn’t sure if you were going there … sorry.
Mark wrote:Well, I for one am doing what I can but power can acquire a momentum that makes it tough for mere mortals to bring down.
Well, this does come back to “economic voting,” as you suggested earlier. But consider this: you give some people a third party candidate they find more palatable than the mainstream center candidate (who supports some of their views, but maybe not strongly enough) and get them to vote for him instead. As a result, the more extreme candidate – who supports none of their views – ends up getting elected. By voting for your preferred candidate, you just screwed yourself royally.
And lest you think this is fantasy, it has actually happened: in 2000, where voters in both Florida (a few hundred) and New Hampshire (a few thousand) went to Nader instead of Gore, and so caused Bush to be elected. And those extremist voters have been the loudest bitchers about that election result ever since, claiming something’s wrong with the system. In fact, nothing was wrong; Nader couldn’t convince enough people to vote for him, and that’s all there was to it – but he convinced enough to get Bush elected. Do those Nader voters think they’re better off?
This strategy is viable when you actually want – as T. Roosevelt did in the 1912 election – to defeat the incumbent of your own party and get the opposition elected. But Nader didn’t want Bush election in 2000, and neither did his supporters. If the third party candidate is in the center, and can siphon votes from both sides in a more-or-less equal proportion, then he might be truly viable; but if he’s primarily to one side – think Perot in 1992, where 2/3 of his voters came from amongst Republicans – then he’ll only tip the election the opposite way (as Perot did in 1992).
The problem isn’t that the parties are entrenched, but rather that most people are more toward the center than anything else, and that’s how we vote. If we didn’t vote that way, the candidates would change (or we’d get different people altogether). But so long as the changes come in from the extremes, there’s no reason to change anything.
Mark wrote:Again, no one is suggesting this was a wonderful thing but it is small peanuts if you want to get into the history of humanities inhumanity.
Irrelevant. I wasn’t saying we’re not as bad as them, but rather that most of those people – at least, in number – would have likely died anyway, and now the killing is slowed to a trickle in comparison. There’s no reason to let it keep happening when we could stop it. WWII was another, similar example, where getting into the war saved lives – how many more would have died in concentration camps if we hadn’t? You think that wasn’t a humanitarian war?
Mark wrote:We are not the world’s keeper.
Actually, in many ways we are. What you’re saying is we shouldn’t be. If you can give me a viable alternative, I’m willing to hear it. Otherwise, it sounds like other people should die because you couldn’t make your car payment this month. (Metaphorically speaking, of course.)
Mark wrote:[We] couldn’t afford it even if we had the moral superiority to accomplish it.
Actually, we have that superiority. Just look at the morals of the countries we invaded recently: Iraq had a government that outlawed opposition and any conception of a bill of rights – which, in fact, killed people mounting an opposition in favor of the same – and Afghanistan was ruled by an brutally extremist version of the Koran.
Mark wrote:While we had some help in the Revolutionary war (from a distance).
Actually, we got plenty of help right here at home, without which we would likely not have won at all.
Mark wrote:[W]e go in, occupy, kill our own and leave to let new despots with new cruelties dominate.
Which is why the trick is to help them get a constitution in place that prevents this. Ever read Iraq’s new constitution?
Mark wrote:I firmly believe that people in their own country need to get sick enough and in large enough numbers to overthrow the despot and put something better in place.
Trouble is, the despots kill the opposition before this can happen. And that’s how it went down in Iraq.
Mark wrote:I do think that war should only be considered when the survival of our country is threatened.
I understand, but I think you’re wrong. It is immoral to stand by and watch another person be killed just because “it’s not our problem.”
Re: Hegel and The State of Exception
« Reply #25 on: Aug 15, 2010, 6:22pm » Quote
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Ian wrote:Sure it is. Not just you and I as individuals, of course, but the people as a whole.
This is an ideal but ideals have a way of getting out of sync with reality. This is not to suggest that we should not have ideals because as human we are always “having ideals” but we do need reality checks so we can strive to make better ideals; ones that correspond to our lived experience. Have there been cases where ideals changed history? Sure (the Constitution), but a lot of hard core work went into them and the reason they endured is because they were right AND took into account the real human condition AND we were willing to sacrifice our blood for them. I think Jefferson was alarmed by the tendency for power to congeal in the hands of a few and democracy to get degraded into simply another despotism (as was Aristotle in The Republic). I think that is what we are looking at today (our Jeffersonian 19 years expired a long time ago). When we see the combination of power, money and public manipulation working in both parties we need to do a reality check and modify our ideals as necessary. Yes, in theory everyone can change the system and everyone has infinite will power but in practice we are always working within compromises and limitations. If we ignore real threats at work within our system of government we will eventually implode.
Ian wrote:And it’s not because of some conspiracy.
Conspiracy theories are for idiots. Who is suggesting that…
Ian wrote:But they’ll only have that power so long as we keep giving it to them.
Well, I for one am doing what I can but power can acquire a momentum that makes it tough for mere mortals to bring down. So do we soak in some sort of existential guilt because I along with the other Is (we) perceive ourselves as giving them power or do we simply do what we can? In the meantime, we do not have to be beguiled into believing that all is working ideally and any perceived problems are our fault (in some general angst sense). We can become aware, think, speak out, work for change and let the chips fall where they may.
Ian wrote:100,000 – 150,000 people died.
Again, no one is suggesting this was a wonderful thing but it is small peanuts if you want to get into the history of humanities inhumanity. We are not the world’s keeper; couldn’t afford it even if we had the moral superiority to accomplish it. While we had some help in the Revolutionary war (from a distance) we, the people, shed our blood. Since I have had brothers lost to the Vietnam War, I am adamant that injustice first needs to be addressed in one’s own country by its own citizens. Otherwise, we go in, occupy, kill our own and leave to let new despots with new cruelties dominate. I firmly believe that people in their own country need to get sick enough and in large enough numbers to overthrow the despot and put something better in place. I do NOT believe in “Freedom Handouts” (see my article http://mixermuse.com/blog/2009/12/23/freedom-handout/)
Ian wrote:In fact, we tried “other ways” for years, to no avail.
We have performed assassinations in the past; it is no great mystery to the CIA. I know that can usher in a whole new can of worms but if it was absolutely necessary I would rather assassination than 5000+ our own children dead (20 somethings are kids for me).
Ian wrote:Not relevant, as that applies only to habeas corpus and not Congress’s war power.
Sorry, you are right, misquote but I do think that war should only be considered when the survival of our country is threatened. There are always many options short of war that can be effective if need be. I think we need to think about efficiency and mission narrowness when it comes to dealing with despots and humanitarian issues. Do you really want to bankrupt the country to solve all the world’s major problems? Don’t you think we could use that money here to help our own? I think that this thinking that only war can solve the problems of the despots of the world will wreck our country, spoil relations with the rest of the world and only succeed in killing our kids without changing anything in the long run. Nation building is impossible because nations are made up of people and if the people do not care enough to save themselves (no matter what they have to sacrifice to get it) the nation we build for them will be a pawn and puppet that will not last.
Quote:Ian: Well, that’s up to us.
Mark: Actually, the point is that it is not.
Sure it is. Not just you and I as individuals, of course, but the people as a whole.
Mark wrote:Sure, in theory, I can go run for President but we all know the likelihood of winning is nil. Likewise, the candidates I would like to see in the running would not have a prayer.
But why is that? Because most people won’t for for you – or them. And it’s not because of some conspiracy, either. Unless
Mark wrote:The two political machines really dictate our political discussion (at least with regard to real power).
But they’ll only have that power so long as we keep giving it to them.
Mark wrote:Personally, I think Capitalism and Democracy, to some extent, are antithetical; they have different outcomes in mind (telos); one to reinforce power and the other (ideally) to break power down.
This is a whole different discussion.
Quote:Ian: “humanitarian invasion”
Mark: Yikes, Orwell would be proud!
Hardly. 100,000 – 150,000 people died (depending on which estimates you look at) as a result of the war; Hussein cause at least thrice that many in the Iran-Iraq war (which he started) just through the use of chemical weapons alone, never mind conventional weapons in that war, or any of the deaths he caused in the invasion of Kuwait. In the aftermath of the first Gulf War, Hussein is estimated to have killed maybe 60,000 Kurds and 95,000 Shi’ites. And these are just the really big numbers.
The cost of avoiding the war easily exceeded the cost of proceeding with it. The real question is why we didn’t take Hussein out sooner – and despite the Bush administration’s WMD and other bogus protestations, we didn’t need another reason to do it. We certainly saved far, far more than we killed, and we killed a helluva lot fewer people than Hussein did.
Mark wrote:I think it is an irrational “jump to a conclusion” to suggest there was no other way…
No one did that. In fact, we tried “other ways” for years, to no avail. You cannot stop a person intent on killing from doing so, unless there are actual consequences, and no way other than removing him was accomplishing anything.
Mark wrote:“{U}nless when in Cases of Rebellion or Invasion” was certainly not the case…
Not relevant, as that applies only to habeas corpus and not Congress’s war power.
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Cwalenta wrote:A federal quuestion simply did not arise. The mosque was not blocked.
In fact, for that reason, no legal issue arose. It has been a political issue, however.
Cwalenta wrote:I gist don’t see how this ‘state of exception’ thesis applies to the mosque controversy.
…nothing directly…it just came up from this:
“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). ”
Cwalenta wrote: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).
…as what I thought was a noteworthy example and exception to politicians (both sides) pulling peoples emotional strings and not standing up for principle.
Cwalenta wrote:I’d rather have people just speak their mind on it.
I think it is great folks speak their mind on it as it is a great opportunity to learn and refresh our memories about our Constitution…there just needs to be a teacher somewhere and not a vacuum so the opportunity is not lost….
Ultimately, the issue of the mosque temps to be pitted as door or against, the purchasers could just as well have decided to build a dunkin donuts for all I care, the point is that it’s the purchasers’ decision ultimately what to do with the property. A federal quuestion simply did not arise. The mosque was not blocked.
The only legitimate challenge that I saw was the fact that the building had been declared a landmark, apparently it had been built in the 19th century and had a cast iron storefront. Ultimately nyc’s landmark Reservation committee weighed the value of preserving this, seemingly minor piece of the city’s architectural history, against the proposed development and ruled in favor of cordon, unanimously, I might add. If the result at that committee, then perhaps a federal question moth arise particularly if voting for the old Burlington coat factory location might simply have been a pretext. Nevertheless, that simply didn’t happen.
Nevertheless, I gist don’t see how this ‘state of exception’ thesis applies to the mosque controversy.
While a successful opposition would almost certainly implicate the free exercise of religion, I’d rather have people just speak their mind on it. In this case, kits religion, in the case of the anti box retailers, they will show up and protest the likes of walmart. As a society, I suppose we value religious freedom over economic freedom, but both fall under the category of preventing people from doing what they want to do with their property.
Ultimately the story is on the national scale, so really I don’t blame Obama for chiming in, really its only natural I suppose, but the question was answered locally, so really there was no reason to ‘violate’ (for lack of a better term) the concept of local control.
Re: Hegel and The State of Exception
« Reply #21 on: Aug 15, 2010, 3:06pm » Quote
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Ian wrote:Well, that’s up to us.
Actually, the point is that it is not. Sure, in theory, I can go run for President but we all know the likelihood of winning is nil. Likewise, the candidates I would like to see in the running would not have a prayer. The two political machines really dictate our political discussion (at least with regard to real power). You can call that a choice I guess and I typically choose/support/work for Democrats but only because they are more to my liking. At some point, folks need to quit thinking the choice of two IS freedom – it is an economic choice. Personally, I think Capitalism and Democracy, to some extent, are antithetical; they have different outcomes in mind (telos); one to reinforce power and the other (ideally) to break power down. I think Jefferson would agree.
Ian wrote:“humanitarian invasion”
Yikes, Orwell would be proud! For me, that is a bit like saying, a square is a circle. We can put the water back but the lives lost are irrecoverable. I think it is an irrational “jump to a conclusion” to suggest there was no other way and in any case “unless when in Cases of Rebellion or Invasion” was certainly not the case…
Re: Hegel and The State of Exception
« Reply #20 on: Aug 15, 2010, 2:34pm » Quote
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Klingon wrote:When Congress is short-sighted enough to declare war against something so nebulous as “terror”, then they need to be the ones to remedy that. They might as well have declared war against “the darkness”.
Indeed, it suggests that any actual declared war against “terror” or “terrorism” might actually be void under Congress’s constitutional war power. Though not explicitly stated therein, it was understand at the time that “war” was between sovereigns, not private parties or concepts. To be sure, it can be useful to speak rhetorically of a “war on terror” or “war on poverty” or “war on drugs;” but calling each of these things a “war” doesn’t make it one.
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Mark wrote:Yes, I agree … we can vote them out but for WHO.
Well, that’s up to us.
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Mark wrote:[C]all me an isolationist if you will, there was no direct threat to the survival of the US and draining the swamp to catch an alligator makes absolutely no sense.
We don’t need a direct threat for a humanitarian invasion to be the right thing to do. And unfortunately, draining the swamp in this case (as with like cases) was the only way to keep the alligator* from killing the rest of the inhabitants of the swamp. We can always put the water back, if needed.
* Or, more likely, crocodile, since alligators are native only to the U.S. and China. I have no idea, though, whether crocodiles can be found in Mesopotamia.
Cwalenta wrote:1. Because in 1980 Hussein invaded Iran
2. Because in 1988, Hussein slaughtered 50-150,000 Kurds
3. Because in 1990, Iraq invaded Kuwait
4. Because Iraq orchestrated a plot to kill Bush I.
5. because in 1994 Iraq mobilized the army and sent it to the Kuwaiti border.
6. because of Iraq’s support for one Kurdish faction over another in 1996
7. From 1996-1998, Iraq frustrated UN weapons inspectors
8. In 1998 Iraq unilaterally ceased weapons inspections.
etc, etc etc….
Yes, horrific and detestable and targeted (smart) approaches make perfect sense (WMF, UN, World Court, possibly even covert activities, etc) but call me an isolationist if you will, there was no direct threat to the survival of the US and draining the swamp to catch an alligator makes absolutely no sense.
Cwalenta wrote:no Federal question has arisen
Do you think it has to arise in court before we can say it has “arisen”? The President was responding to questions about why the Federal government was not getting involved and he gave the appropriate and correct answer. Did you disagree with the answer? Does it hurt for any reason to stand on and cite solid constitutional grounds that almost no one SHOULD contest…
On Aug 15, 2010, 1:26pm, markdart wrote:In any case, from what I remember about Bush and Iraq and Afghanistan (might be wrong) but it seems like a few leaders in the Congress were called to midnight meetings where they were informed about imminent conflict with American troops.
WMD/illusory connections to Al-Qaida notwithstanding, the decision to go to war with Iraq in 2003 still did not occur in a vacuum, don’t forget that 2003 was still the product of 12+ years of antagonistic relations between the US and Iraq. The relationship was such that from 1991-1998, Clinton was annoyed enough that the ‘Iraq Liberation Act’ of 1998 was passed: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ338.105.pdf
Where it was the express policy of the US to support regime change in Iraq. Why?
1. Because in 1980 Hussein invaded Iran
2. Because in 1988, Hussein slaughtered 50-150,000 Kurds
3. Because in 1990, Iraq invaded Kuwait
4. Because Iraq orchestrated a plot to kill Bush I.
5. because in 1994 Iraq mobilized the army and sent it to the Kuwaiti border.
6. because of Iraq’s support for one Kurdish faction over another in 1996
7. From 1996-1998, Iraq frustrated UN weapons inspectors
8. In 1998 Iraq unilaterally ceased weapons inspections.
etc, etc etc….
On Aug 15, 2010, 1:26pm, markdart wrote:“why obama’s comments on the mosque in NYC are an exception”
…because his comments were directed at the folks that were asking for government involvement to stop the mosque. President Obama was doing his sworn duty to protect the Constitution and citing the 1st Amendment:
Hence it wouldn’t be an exception and in point of fact the mosque did get approval, the I Amendment, incorporated against NY via the XIV (and the city) has not been violated and hence no Federal question has arisen.
Ian wrote:That some may refuse to exercise the power accorded them by the Constitution is no reason to assert the system doesn’t work. After all, we voted for them….
Well, as much as Republican’s have been whining about holding their nose and voting, I have been doing that since Reagan (with a few notable exceptions). I think the two party machinery makes it hard to find anything like an ideal candidate. In any case, from what I remember about Bush and Iraq and Afghanistan (might be wrong) but it seems like a few leaders in the Congress were called to midnight meetings where they were informed about imminent conflict with American troops. If that is the approval of Congress I think it certainly smells. After troops are committed and dying most politicians are not going to abandon our troops and quit sending them artillery. Yes, I agree both Dems and Repubs are not exercising their duty to uphold the constitution and we can vote them out but for WHO – another carbon copy of a politician not a statesman.
Cwalenta wrote:…why obama’s comments on the mosque in NYC are an exception.
…because his comments were directed at the folks that were asking for government involvement to stop the mosque. President Obama was doing his sworn duty to protect the Constitution and citing the 1st Amendment:
The First Amendment wrote:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The President has every right and obligation to uphold and defend the Constitution not just in a legal challenge but long before tax payers have spent millions on legal expenses. As in manufacturing, nipping problems in the bud makes huge financial sense. Since he was speaking on strict constitutional grounds he was not challenging the Constitution as Lindsay Graham has done but re-affirming it – I can think of nothing better especially in light of all the Constitutional “questions” the Repubs have been surfacing lately…
On Aug 15, 2010, 12:38pm, cwalenta99 wrote:Well, first, I’m not sure why obama’s comments on the mosque in NYC are an exception. Except for the fact that it is in the news, Obama really shouldn’t have been commenting on it anymore than bush should’ve been discussing schiavo in Florida. (while both issues could implicate federal scrutiny, the mosque hasn’t and schiavo’s case didn’t until it hit the federal court)
Obama’s job is protecting the free exercise of religion, which is exactly what he is doing.
Quote:In any event, the war powers act has been a source of friction, not between republicans and democrats, but rather between all presidents and all congresses, though obviously partisanship will play a role.
Then Congress needs to repeal it and issue a better one, or not, and stop whining that the President is executing the authority they gave him.
Quote:What we have witnessed since Nixon is the c and c power coming up against congress’ power to declare war. What is particularly fascinating about it is that the court cases reveal that the judicial branch, for one reason or another, treats the issue as a hot potato, essentially they let the constitutional crisis die it’s own death rather than bring the issue to a head. Reagan’s invasion of Grenada resulted in a moot ruling from a court when troops were still in Grenada.
When Congress is short-sighted enough to declare war against something so nebulous as “terror”, then they need to be the ones to remedy that. They might as well have declared war against “the darkness”.
Quote:(the subsequent international condemnation of the invasion, despite the fact that the coup leader had brutally murdered the lawfully elected leader of Grenada, is the true beginning of the modern rights’ disdain for the U.N.)
To a certain degree, neither side really wants to bring it to a head since obviously somebody would have to lose and the result has been this dance where presidents comply with war powers reporting requirements while stating that they don’t really have to.
Reminds me a bit of the naval detente that followed the Battle of Jutland. The English still had a larger navy, but had been shown to be less effective in actual battle against the Germans (despite outnumbering the Germans 3-2, they were actually losing ships at that same rate, 3 of theirs for the Germans’ 2). In the aftermath, both sides declined to offer a conclusive battle, for fear they would lose said battle, whereas with their navies intact they could at least threaten action, and in so doing, influence the enemy’s actions (this is also known as the Fleet-in-being doctrine, which in essence died at the Battle of Taranto (where the British showed that the advent of the aircraft carrier meant that not even in port was a fleet totally safe). To complete this analogy, once Congress revises or repeals the War Powers Act, that resolution will render the standoff moot.
Well, first, I’m not sure why obama’s comments on the mosque in NYC are an exception. Except for the fact that it is in the news, Obama really shouldn’t have been commenting on it anymore than bush should’ve been discussing schiavo in Florida. (while both issues could implicate federal scrutiny, the mosque hasn’t and schiavo’s case didn’t until it hit the federal court)
In any event, the war powers act has been a source of friction, not between republicans and democrats, but rather between all presidents and all congresses, though obviously partisanship will play a role.
What we have witnessed since Nixon is the c and c power coming up against congress’ power to declare war. What is particularly fascinating about it is that the court cases reveal that the judicial branch, for one reason or another, treats the issue as a hot potato, essentially they let the constitutional crisis die it’s own death rather than bring the issue to a head. Reagan’s invasion of Grenada resulted in a moot ruling from a court when troops were still in Grenada.
(the subsequent international condemnation of the invasion, despite the fact that the coup leader had brutally murdered the lawfully elected leader of Grenada, is the true beginning of the modern rights’ disdain for the un)
To a certain degree, neither side really wants to bring it to a head since obviously somebody would have to lose and the result has been this dance where presidents comply with war powers reporting requirements while stating that they don’t really have to.
Mark wrote:As the votes indicate Democrats had more problems with it than Republican’s but many Democrats voted for it for purely political reasons.
That some may refuse to exercise the power accorded them by the Constitution is no reason to assert the system doesn’t work. After all, we voted for them….
Mark wrote:In times where the president commits us to war with troops already engaged in conflict (without official decree of war)…
Note, however, that the AUMF for invading Iraq was a proper exercise of the legislature’s power to declare war. The fact that the document did not use such language as “we declare war” is irrelevant, because the war power is not dependent upon the use of legal “magic words.”
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.
Liberty4 wrote:I think it’s a tough call to make because there are national security concerns, esspecially when dealing with foreign fighters who have sworn their lives to the destruction of the U.S.
A claim of “national security” is not a law- or constitution-stopper, and there is no (legitimate) constitutional basis for asserting it is. Additionally, a sworn commitment to the destruction of the U.S. does not form any legal basis for limiting constitutionally-guaranteed rights. In fact, doing so basically gives the terrorists what they’re trying to accomplish: dismantling our constitution.
Liberty4 wrote:I think the facts presented here imply that the framers never intended for Habeas Corpus to apply to non citizens or foreign nationals held on foriegn soil.
On the contrary, there is no basis for assuming habeas corpus is limited to our citizens held locally, because there is no indicator of discrimination on that basis.
To be sure, a person may be a legitimate prisoner of war. Or properly dealt with under our criminal code. But those are the only two possibilities, and because of the other limits placed on the exercise of governmental power in the Constitution, the president is prohibited from stepping outside of them because of some characteristic of the person to whom the action applies.
On Aug 13, 2010, 4:20pm, Liberty4TheWin wrote:I think the facts presented here imply that the framers never intended for Habeas Corpus to apply to non citizens or foreign nationals held on foriegn soil.
Well, this was the root common law rule and you can read Scalia’s dissent where he discusses some of the history of the rule.
Bush Administration’s argument that Habeas Corpus did not apply to prisoners held in Cuba because Cuba retained ‘sovereignity’ over Guantanamo Bay kind’ve fell on deaf ears. In considering the totality of the circumstances with respect to US control over Guantanamo Bay, arguing that ‘its technically Cuba’ isn’t going to fly.
Nevertheless, the ‘core’ of the rule remains intact:
http://www.csmonitor.com/USA/Justice/2010/0521/Detainees-held-by-US-in-Afghanistan-can-t-contest-custody-court-finds
So, they smartened up and started sending them to Bagram
I think it’s a tough call to make because there are national security concerns, esspecially when dealing with foreign fighters who have sworn their lives to the destruction of the U.S.
In my opinion the President has great lattitude in national security and foreign affairs and the treatment of foriegn combatants and collaborators should fall under his authority (as appropriately restricted by the congress).
I don’t know exactly where the line should be drawn in these cases but I know that the government should never be able to infringe on the property and privacy of it’s own citizens.
On Aug 13, 2010, 4:06pm, cwalenta99 wrote:”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.”
I think the facts presented here imply that the framers never intended for Habeas Corpus to apply to non citizens or foreign nationals held on foriegn soil.
Comments from http://www.usconstitution.net/yabb/YaBB.cgi?board=debate;action=display;num=1281482071
“1. The Patriot Act of George Bush
2. The suspension of a right to trial (Habeas corpus) at Guantánamo Bay, Cuba
3. Dick Cheney’s defense of torture based on “national security” and Abu Ghraib
4. Justification for the wars in Iraq and Afghanistan”
Which are all well and good to discuss, however….such topics can get convoluted really quick.
You seem fairly interested in Habeas Corpus, which is a good thing, specifically #2 and if you want to focus on that one to begin with let’s do that and THEN let’s move on to the others.
The link above notes:
“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.”
The second half (the distinction between Congress’ power to Declare War and the President’s C-in-C power is necessarily a long discussion in itself. But this statement here: ““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).”
It is palpably clear where the authority lies….with Congress…..Nevertheless, certain emergencies call for ‘broad executive authority’ [quoting FDR for rhetorical effect] and I believe the National Emergencies Act exemplifies this in a manner where Congress gives the President a ‘long’ leash and then clearly has the authority to pull the leash in if it should be abused, used in an arbitrary or capricious manner, etc. Lincoln’s suspension of Habeas Corpus in 1860 ‘along the military line connecting Philadelphia to DC’ occurred while Congress wasn’t in session.
Furthermore, as the Supreme Court opinions have made abundantly clear, the decision to suspend the writ is subject to judicial review. In other words, there IS such a thing as an unconstitutional suspension of Habeas Corpus. The decision to suspend normality, or the operation of civil law implicates ALL three branches of government. The Executive needs to recognize an emergency, Congress, in due course needs to deliberate the extent and the necessities of the situation, and ultimately when cases arise impacting individual liberty, those decisions are subject to judicial review.
In any event, with respect to #2 (suspension of the writ), essentially we’re discussing enemy combatant, as Bush referred to them, vs. ‘lawful combatants’, and now under the MCA of 2009 (Obama’s military tribunals – unprivileged combatants).
Ultimately the cases that occurred, including Padilla, Boumediene, Hamdi, etc. are all extremely important cases and by and large a fairly loud chorus of objection arose without fully realizing that Congress’ actions (under Bush) were consistent with the precedents established by Quirin and Eisentrager (the WWII cases)
So, what changed? In Boumediene, the Supreme Court makes clear that the Geneva Convention of 1949 and specifically provisions relating to ‘conflicts NOT [emphasis supplied] of an international charachter’ resulted in certain Due Process requirements over and above what were provided in Quirin and Eisentrager
Of course, much to the chagrin of most who have an interest in the issue, the Supreme Court did not enunciate a standard and now we’re essentially back at sqaure 1 and we’re trying out the Military Commissions Act of 2009.