January-June 2016
ISSN 2050-005X (Online); 978-1522795582 (ISBN-13); 1522795588 (ISBN-10)
The traditional juristic definition of the sovereign as ‘he who decides on the exception’, which has been introduced by the social and legal philosopher Carl Schmitt in Political Theology, arguably constitutes the clef de voûte which enables us to underpin the philosophy of the state of exception. Whereas exceptions of law under ordinary circumstances operate within a predetermined constitutional order, which provides guidelines on how these situations are to be dealt with, a state of emergency does not need an existing legal order to function. Within this context, the sovereign has the ultimate power to transcend the legal order and impose such measures as deemed necessary to confront the crisis and re-establish order and stability within the nation, usually by invoking the ‘public good’. In Agamben’s work, the concept of necessity has a fundamental role in establishing the state of exception. It has been acknowledged that ‘necessity creates its own law’ and, occasionally, it constitutes the main justification for governments to implement their executive orders, albeit the transgression of the law. In the aftermath of 9/11, the United States faced an exceptional situation of national emergency in which it was deemed urgent to confront a new kind of threat by any necessary means. More than a decade on, and following similar events in other Western countries, it can be argued that the global legal and political order of the 21st century has changed dramatically, manifesting, what it is now evident, a permanent state of emergency.
Keywords: political theory, state of exception, ‘force-of-law’, post-9/11 jurisprudence
1 Giorgio Agamben, The State of Exception (University of Chicago, 2005).
2 Ibid., 32–34.
3 Ibid., 24.
4 Carl Schmitt, Political Theology (MIT Press, 1985).
5 Ibid., 5.
6 Ibid.
7 Ibid., 30.
8 Agamben, 4–5.
9 Agamben, 3, 4–5, 47.
10 Ibid., 6.
11 Ibid., 7.
12 Ibid., 23.
13 A. Fontana, Le droit de resistance: Du droit de resistance au devoir d’insurrection, (Jean-Claude Zancarini ed, Paris: ENS 1999), 16.
14 Schmitt, 137.
15 Agamben, 37–39.
16 Agamben, 24.
17 Matthew J. Morgan, The Impact of the 9/11 on Politics and War: The Day That Changed Everything? (Palgrave Macmillan, 2009), 200, 204, 207.
18 Agamben, 87.
19 Fleur Johns, ‘Guantanamo Bay and the Annihilation of the Exception’ (2005) 16 EJIL 613.
20 ‘Notice: Continuation of the National Emergency with Respect to Certain Terrorist Attacks’ (The White House, 12 September 2007) <http://georgewbushwhitehouse.archives.gov/news/releases/2007/09/20070912-2.html> accessed 26 October 2015.
21 ‘Letter from the President on the Continuation of the National Emergency with Respect to Certain Terrorist Attacks’ (The White House, 10 September 2010) <https://www.whitehouse.gov/the-press-office/2010/09/10/letter-president-continuation-national-emergency-with-respect-certain-te> accessed 26 October 2015.
22 USA Patriot Act of 2001, s 412.
23 Ibid., ss 364(3), 505–508, 701.
24 Act codified at 115 Stat. 224 and passed as S.J.Res. 23 by the US Congress.
25 Stephen Humphreys, ‘Legalising Lawlessness: On Giorgio Agamben’s State of Exception’ (2006) 17 EJIL 677.
26 Detainee Treatment Act of 2005, s 1005(e).
27 Military Order of 2001, ss 1(e), 2(b) and 3(e).
28 See the application of the notion of the ‘force-of-law’ as analysed further above.
29 Agamben, 50.
30 James Risen and Eric Lichtblau, ‘Bush Lets U.S. Spy on Callers Without Courts’ (The New York Times, 16 December 2005) <
http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=1&> accessed 23 October 2015.
31 Edward Snowden, ‘If I end up in Guantanamo, I can live with that’ (The Guardian Interviews, 18 July 2014) <https://www.youtube.com/watch?v=L_amBkYx_Fk> accessed 23 October 2015.
32 Carol Cratty, ‘FBI uses drones for surveillance in U.S’, (CNN, 20 June 2013) <http://edition.cnn.com/2013/06/19/politics/fbi-drones/> accessed 19 October 2015.
33 Linda Lye, ‘Easily Abused, Domestic drones raises enormous privacy concerns’, (American Civil Liberties Union, 19 October 2012) <https://www.aclu.org/blog/speakeasy/easily-abused-domestic-drones-raise-enormous-privacy-concerns?redirect=blog/technology-and-liberty-national-security/easily-abused-domestic-drones-raise-enormous-privacy> accessed 23 October 2015.
34 Ben Russell, ‘The battle for civil liberties: Government on offensive after criticism of ‘authoritarian’ laws’ (The Independent, 17 April 2012) <
http://www.independent.co.uk/news/uk/politics/the-battle-for-civil-liberties-government-on-offensive-after-criticism-of-authoritarian-laws-359794.html> accessed 24 October 2015.
35 Agamben, 38.
36 Ibid., 23.
37 See, Tom R. Hickman, ‘Between Human Rights and the Rule of Law: Indefinite detention and the derogation model of constitutionalism’ (2005) 68 Modern Law Review 655, 659.
38 Oren Gross, ‘Chaos and rules: Should responses to violent crises always by constitutional?’ (2011) Minnesota Public Law Research Paper No. 03-2, 1011.
39 [2004] UKHL 56.
40 A v Secretary of State for the Home Department, X v Secretary of State for the Home Department, [2005] AC 68, 172.
41 Lawless v. Ireland (No.3) (App.332/57) 1961, Ireland v. UK (App.5310/71) 1978.
42 U.S. 466 (2004), see also Hamdi v. Rumsfeld 542 U.S. 507 (2004).
43 Also see, ACLU v. Clapper (Docket No. 14-4-cv, 2015), where NSA mass surveillance practices were ruled illegal.
44 Kim L. Scheppele, ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’ (2004) 6 U. Pa. J. Const. L. 1001, 1059-1062, 1070-1071.
45 E. Macaskill and G. Dance, ‘NSA files: Decoded. What the revelations mean for you’ (The Guardian, 1 November 2013)
<http://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1> accessed 12 October 2015.
46 Ibid.
47 A series of additional legislation followed; see further above on page 121.
48 French intelligence had stopped monitoring the attackers although they had been previously convicted of terrorism, see Jamie Doward, ‘Charlie Hebdo: could security services have prevented Paris attacks?’ (The Guardian, 10 January 2015)
<http://www.theguardian.com/world/2015/jan/10/charlie-hebdo-security-services-paris-attacks> accessed 27 October 2015.
49 Scheppele, 1021.
50 Henry A. Giroux, ‘Violence, Katrina and the Biopolitics of Disposability’ (2007) 24 Theory, Culture & Society 305.
51 Benjamin Franklin, Poor Richard’s Almanack (1759).
52 D. Crumm, ‘America 2015: Freedom or Security?’ (Read the Spirit, January 2015)
<http://www.readthespirit.com/ourvalues/america-2015-freedom-security/> accessed 25 October 2015.
53 Scheppele, 1003.
† LLM student in Public International Law, University of Leicester.
(2016). Agamben’s State of Exception in Context: A Critical Analysis with Regard to Post-9/11 Jurisprudence. Legal issues Journal, 4 (1), https://www.legalissuesjournal.com/article/04-01-14012016/
