The State of Freedom and the State of Emergency

By Assaf Sagiv

Reports of the death of democracy after 9-11 are premature.

At the end of the sixth century B.C.E., the city state of Rome underwent a major political upheaval. Fed up with the cruelty of their seventh and last king, Lucius Tarquinius Superbus, the Roman people expelled him from the city. They then replaced the detested monarchy with a republican form of government, one committed to the principle of freedom—libertas—and relying, at least in principle, on the participation of the entire citizenry in public life. But the republic was immediately in peril. Neighboring Latin cities united against it, and the Romans took a drastic step: The appointment of a dictator.1
Contrary to the modern connotation of the term, the Roman “dictator” was not a tyrant; rather, he was invested with wide-ranging military and political powers for the purpose of addressing, unhindered, both external and internal threats to the security of the state. Thus, although the very idea of absolute authority was antithetical to the spirit of the republic, an existential danger to the homeland justified, in the eyes of the Romans, the concentration of power in the hands of one individual. Still, the dictator was not omnipotent: He was appointed by a consul on the recommendation of the Senate; his tenure was limited to six months (even less, if he completed his task); his judicial powers were extremely restricted, and did not generally extend to constitutional matters; and he was forced to rely on other authorities for approval of expenditures.2 Since Roman history was riddled with wars and violent struggles, the appointment of a dictator was not a rare occurrence; beginning with Titus Larcius Flavius, appointed in 501 B.C.E., the office was held dozens of times until its abolition by Mark Antony after the murder of Julius Caesar in 44 B.C.E.3
In the intervening centuries, the word “dictator” took on negative connotations in Western political discourse. Yet the rationale on which the concept was based remains as valid as ever. Indeed, even the most enlightened of today’s liberal democracies recognize the special requirements of a state of emergency: The need for a state, under certain exceptional circumstances, to take radical measures—the suspension of the law and the formal rules of justice, for example—to ensure its survival. This is precisely the kind of argument made by some of the democracies currently fighting the global war on terror. Although these regimes identify themselves with the ideals of progress, tolerance, and liberty, they are increasingly prepared to act in an oppressive fashion, even to suspend constitutional provisions, justifying this course of action by arguing that the protection of the lives and well-being of their citizens leaves them with no other choice.
Perhaps the most striking example of this trend is the set of policies undertaken by the United States since the terror attacks of September 11, 2001. In this period, the American government has incarcerated hundreds of people suspected of terrorist activities—officially deemed “unlawful enemy combatants”—in the Guantánamo Bay detention camp and in secret CIA facilities throughout the world, without granting them the right, for example, to take their case to court—considered a basic tenet of common law—and without setting a time limit on their detention.4 President George W. Bush secretly allowed the National Security Agency (NSA) to wiretap American citizens on American soil, despite the fact that it had in the past been authorized to conduct wiretaps and surveillance only outside the borders of the United States.5 Confronting the public outcry over these actions, spokesmen for the Bush administration repeatedly claimed that they were compelled to act in order to protect the essential interests of “national security.”6
The United States is hardly a special case, however. When faced with similar security concerns, several European countries have taken similar steps. On November 12, 2001, in the wake of the September 11 attacks, British Home Secretary David Blunkett declared a state of emergency in the United Kingdom. This move allowed his government to release itself from the constraints imposed on it by the European Convention on Human Rights, and cleared a path for the passage of laws intended to extend dramatically the powers of the security services.7 President Jacques Chirac of France also declared a state of emergency on November 8, 2005, in response to riots by Muslim immigrants in the suburbs of Paris and other French cities. This allowed police forces to impose a curfew, to conduct searches without a warrant, to place suspects under house arrest, and to prohibit public assembly. This state of emergency, of a kind France had not experienced since its withdrawal from Algeria in 1962, was officially rescinded two months later, in January 2006, long after the period of unrest had ended.8
Against this backdrop, many activists and organizations—particularly those committed to the defense of human rights—have begun to worry about the moral and constitutional state of liberal democracies. Some influential intellectuals have adopted an almost apocalyptic tone, insisting that we are in fact witnessing the transformation of Western democracies into tyrannical regimes, under the guise of a permanent “state of emergency.” “Faced with the unstoppable progression of what has been called a ‘global civil war,’” writes the philosopher Giorgio Agamben, “the state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics.” According to Agamben, “this transformation of a provisional and exceptional measure into a technique of government threatens radically to alter—in fact, has already palpably altered—the structure and meaning of the traditional distinction between constitutional forms. Indeed, from this perspective, the state of exception appears as a threshold of indeterminacy between democracy and absolutism.”9 Similarly, neo-Marxist thinkers Michael Hardt and Antonio Negri argue in their book Empire—published, it should be noted, prior to the events of September 11—that the old political order, based on nation states, has gradually come to be displaced by a new one, which finds legitimacy for its predatory tactics through the paradigm of a permanent “state of exception.”10 So, too, does Judith Butler, a central figure in the field of gender studies, believe that the phenomenon of Guantánamo is suggestive of things to come:
The fact of extra-legal power is not new, but the mechanism by which it achieves its goals under present circumstances is singular. Indeed, it may be that this singularity consists in the way the “present circumstance” is transformed into a reality indefinitely extended into the future, controlling not only the lives of the prisoners and the fate of constitutional and international law, but also the very ways in which the future may or may not be thought.11
The fear of what Slovenian philosopher Slavoj Zizek calls “the liberal-totalitarian emergency”12 stems, therefore, from the belief that even countries with a robust democratic tradition may find themselves pulled into a legal black hole from which there is no escape. In view of the revelations of abuse of detainees by Americans and their allies in recent years, this fear may seem to be justified. But is it?
Broadly speaking, it is not. True, while confronted with a tangible threat, democracies are capable of acting brutally and oppressively. But as I shall argue, in the final analysis democratic peoples and governments perceive the state of emergency as more of a burden than a temptation. While democratic regimes may be capable of sustaining it temporarily, over time it presents them with serious problems, resulting from the deep conflict between the state of emergency and the worldview on which both the structure of their government and their methods of operation are based. In what follows, I will focus on this fundamental conflict. I will begin by bringing into relief the animosity displayed by the modern liberal state toward any exercise of extra-judicial power, including that particular kind of violence that is said to “precede” the rule of law, or to establish it from the outset. I shall then address the role played by the sovereign in the decision to declare a state of emergency and the ways that democratic systems call this kind of authority into question. Next, I will examine the remarkable ability, and inclination, of the liberal-democratic order to handle social discord without resorting to extreme measures. Finally, I will explore the underlying commonality of all these elements, and argue that modern Western democratic culture possesses a distinctive anti-authoritarian impulse, one that allows it to function, to a great extent, as an arena of resistance to government—a quality that, while perhaps not ensuring its full immunity to self-destruction, nonetheless reduces considerably its chances of sliding into a permanent state of emergency, in which the great political and moral advantages democracy has over the despots and terrorists who challenge it are eviscerated.

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