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The state of exception is the new normal. Since World


War I, executive violence has been normalized by the
globalization of the state of exception when the law
justifies its own suspension, transforming itself into a
killing machine, and ushering in global civil war. The
response to exceptional sovereign violence cannot be a
return to the legal normal which authorizes such
surveillance to secure its own existence, but disrupting
the workings of the machine
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 85-87

It is perhaps possible at this point to look back upon the path trav- eled thus far and draw some provisional

The juridical system of the West


appears as a double structure, formed by two heterogeneous yet coordinated
el- ements: one that is normative and juridical in the strict sense (which we can for
convenience inscribe under the rubric potestas) and one that is anomic and metajuridical
(which we can call by the name auctoritas). The normative element needs the anomic
element in order to be ap- plied, but, on the other hand, auctoritas can assert
itself only in the val- idation or suspension of potestas . Because it results from the
dialectic between these two somewhat antagonistic yet functionally connected elements, the ancient
dwelling of law is fragile and, in straining to main- tain its own order, is
always already in the process of ruin and decay. The state of exception is the
device that must ultimately articulate and hold together the two aspects of
the juridico-political machine by instituting a threshold of undecidability
between anomie and nomos, between life and law, between auctoritas and
potestas. It is founded on the essential fiction according to which anomie (in
the form of auctoritas, living law, or the force of law) is still related to the juridical order and
the power to suspend the norm has an immediate hold on life. As long as
conclusions from our investi- gation of the state of exception.

the two el- ements remain correlated yet conceptually, temporally,


and subjectively distinct

(as in republican Romes contrast between the Senate and the

people, or in medieval Europes contrast between spiritual and temporal powers)

their dialectic

though founded on a fictioncan nevertheless function in some


way . But when they tend to coincide in a single per- son, when the state of
exception, in which they are bound and blurred together, becomes the rule,
then the juridico-political system transforms itself into a killing machine.
6.10 The aim of this investigationin the urgency of the state of ex- ception
in which we livewas to bring to light the fiction that governs this arcanum
imperii [secret of power] par excellence of our time. What the ark of power
contains at its center is the state of exceptionbut this is essentially an
empty space, in which a human action with no re- lation to law stands before
a norm with no relation to life. This does not mean that the machine, with its
empty center, is not effective; on the contrary, what we have sought to show
is precisely that it has continued to function almost without interruption from

World War One, through fascism and National Socialism, and up to our own
time. Indeed, the state of exception has today reached its maximum
worldwide deployment. The normative aspect of law can thus be obliter- ated
and contradicted with impunity by a governmental violence that while
ignoring international law externally and producing a permanent state of
exception internallynevertheless still claims to be applying the law. Of course,
the task at hand is not to bring the state of exception back within its spatially and temporally defined
boundaries in order to then reaffirm the primacy of a norm and of rights that are themselves ulti- mately

it is not possible to return to


the state of law [stato di diritto], for at issue now are the very concepts of
grounded in it. From the real state of exception in which we live,

state and law. But if it is possible to attempt to halt the machine, to


show its central fiction, this is because between violence and law, between
life and norm, there is no substantial articulation. Alongside the movement
that seeks to keep them in rela- tion at all costs, there is a countermovement
that, working in an inverse direction in law and in life, always seeks to loosen
what has been artifi- cially and violently linked. That is to say, in the field of tension of
our culture, two opposite forces act, one that institutes and makes, and one that deactivates and deposes.

The state of exception is both the point of their maximum tension andas it
coincides with the rulethat which threatens today to render them
indiscernible. To live in the state of ex- ception 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.

Because of surveillance and security, our current political


society is a paradoxical state of exception, a Security
State that destroys not only democracy and personal
identity but politics itself.
Agamben 13 - philosopher known for work on the state of exception and

homo sacer (Giorgio; awarded the Dr. Leopold Lucas Prize, teaches at
Accademia di Architettura di Mendrisio; For a Theory of Destituent Power;
Chronos; 11/16/2013; http://www.chronosmag.eu/index.php/g-agamben-for-atheory-of-destituent-power.html)
A reflection on the destiny of democracy today here in Athens is in some way
disturbing, because it obliges to think the end of democracy in the very place
where it was born. As a matter of fact, the hypothesis I would like to suggest
is that the prevailing governamental paradigm in Europe today is not only
non democratic, but that it cannot either be considered as political. I will try
therefore to show that the European society today is no more a political
society: it is something entirely new, for which we lack a proper terminology
and we have therefore to invent a new strategy.
Let me begin with a concept which seems, starting from September 2001, to
have replaced any other political notion: security. As you know, the formula
for security reasons functions today in any domain, from everyday life to
international conflicts, as a password in order to impose measures that the
people have no reason to accept. I will try to show that the real purpose of
the security measures is not, as it is currently assumed, to prevent dangers,

troubles or even catastrophes. I will be consequently obliged to make a short


genealogy of the concept of security.
One possible way to sketch such a genealogy would be to inscribe its origin
and history in the paradigm of the state of exception. In this perspective, we
could trace it back to the Roman principle Salus publica suprema lex, public
safety is the highest law, and connect it with Roman dictatorship, with the
canonistic principle necessity does not acknowledge any law, with the
comites de salut publique during French revolution and finally with article 48
of the Weimar republic, which was the juridical ground for the nazi regime.
Such a genealogy is certainly correct, but I do not think that it could really
explain the functioning of the security apparatuses and measures which are
familiar to us. While the state of exception was originally conceived as a
provisional measure, which was meant to cope with an immediate danger in
order to restore the normal situation, the security reasons constitute today a
pemanent technology of government. When in 2003 I published a book in
which I tried to show precisely how the state of exception was becoming
in western democracies a normal system of government, I could not
imagine that my diagnosis would prove so accurate. The only clear precedent
was the Nazi regime. When Hitler took the power in february 1933, he
immediately proclaimed a decree suspending the articles of the Weimar
constitution concerning personal liberties. The decree was never revoked, so
that the entire Third Reich can be considered as a state of exception which
lasted twelve years.
What is happening today is still different. A formal state of exception is not
declared and we see instead that vague non juridical notions like the
security reasons- are used to instaure a stable state of creeping and fictitious
emergency without any clearly identifiable danger. An example of such non
juridical notions which are used as emergency producing factors is the
concept of crisis. Besides the juridical meaning of judgement in a trial, two
semantic traditions converge in the history of this term which, as it is evident
for you, comes from the greek verb crino: a medical and a theological one. In
the medical tradition, crisis means the moment in which the doctor has to
judge, to decide if the patient will die or survive. The day or the days in which
this decision is taken are called crisimoi, the decisive days. In theology, crisis
is the Last Judgment pronounced by Christ in the end of times. As you can
see, what is essential in both traditions is the connection with a certain
moment in time. In the present usage of the term, it is precisely this
connection which is abolished. The crisis, the judgement is split from its
temporal index and coincides now with the cronological course of time, so
that, not only in economics and politics, but in every aspect of social life, the
crisis coincides with normality and becomes, in this way, just a tool of
government. Consequently, the capability to decide once for all disappears
and the continuous decision-making process decides nothing. To state it in
paradoxixal terms, we could say that, having to face a continuous state
of exception, the governement tends to take the form of a perpetual
coup dtat. By the way, this paradox would be an accurate description of
what happens here in Greece as well as in Italy, where to govern means to
make a continuos series of small coups dtat. The present government of
Italy is not legitimate.

This is why I think that, in order to understand the peculiar governamentality


under which we live, the paradigm of the state of exception is not entirely
adequate. I will therefore follow Michel Foucaults suggestion and investigate
the origin of the concept of security in the beginning of modern economy, by
Franois Quesnais and the Physiocrates, whose influence on modern
governamentality could not be overestimated. Starting with Westphalie
treaty, the great absolutist european states begin to introduce in their
political discourse the idea that the sovereign has to take care of his subjects
security. But Quesnay is the first to establish security (suret) as the central
notion in the theory of government and this in a very peculiar way.
One of the main problems governments had to cope with at the time, was the
problem of famines. Before Quesnay, the usual methodology was trying to
prevent famines by the creation of public granaries and forbidding the
exportation of cereals. Both this measures had negatives effects on the
production. Quesnays idea was to reverse the process: instead of trying to
prevent famines, he decided to let them happen and to be able to govern
them once they occurred, liberalizing both internal and foreign exchanges.
To govern retains here its etymological cybernetical meaning: a good
kybernes, a good pilot cant avoid tempests, but, if a tempest occures, he
must be able to govern his boat, using the force of waves and winds for the
navigation. This is the meaning of the famous motto laisser faire, laissez
passer: it is not only the catchword of economic liberalism: it is a paradigm
of government, which conceives of security (suret, in Quesnay words) non
as the prevention of troubles, but rather as the ability to govern and guide
them in the good direction once they take place.
We should not neglect the philosophical implications of this reversal. It means
an epoch-making transformation in the very idea of government, which
overturns the traditional hyerachical relation between causes and effects.
Since governing the causes is difficult and expensive, it is more safe and
useful to try to govern the effects. I would suggest that this theorem by
Quesnay is the axiom of modern governamentality. The ancien regime aimed
to rule the causes, modernity pretends to control the effects. And this axiom
applies to every domain: from economy to ecology, from foreign and military
politics to the internal measures of police. We must realize that European
governments today gave up any attempt to rule the causes, they only want
to govern the effects. And Quesnays theorem makes also understandable a
fact which seems otherwise inexplicable: I mean the paradoxical convergence
today of an absolutely liberal paradigm in economy with an unprecedented
and equally absolute paradigm of state and police control. If government
aims to the effects and not to the causes, it will be obliged to extend and
multiply controls. Causes demand to be known, while effects can only be
checked and controlled.
One important sphere in which the axiom is operative is that of biometrical
security apparatuses, which is increasingly pervading every aspect of social
life. When biometrical technologies first appeared in 18th century in France
with Alphonse Bertillon and in England with Francis Galton, the inventor of
finger prints, they were obviously not meant to prevent crimes, but only to
recognize recidivist delinquents. Only once a second crime has occurred, you
can use the biometrical data to identify the offender.

Biometrical technologies, which had been invented for recividist criminals,


remained for longtime their exclusive privilege. In 1943, the Congress of the
USA still refused the Citizen identification act, which was meant to introduce
for every citizen an Identity Card with finger prints. But according to a sort of
fatality or unwritten law of modernity, the technologies which have been
invented for animals, for criminals, strangers or Jews, will finally be extended
to all human beings. Therefore in the course of 20th century, biometric
technologies have been applied to all citizens and Bertillon identifying
photograph and Galtons fingerprints are currently used in every country for
ID cards.
But the extreme step has been taken only in our days and it is still in the
process of full realization. The development of new digital technologies, with
optical scanners which can easily record not only finger prints but also the
retina or the eye iris structure, biometrical apparatuses tend to move beyond
the police stations and immigration offices and spread to everyday life. In
many countries, the access to students restaurants or even to schools is
controlled by a biometric apparatus on which the student just puts his hand.
The European industries in this field, which are quickly growing, recommend
that citizens get used to this kind of controls from their early youth. The
phenomenon is really disturbing, because the European Commissions for the
development of security (like the ESPR, European security research program)
include among their permanent members the representatives of the big
industries in the field, which are just armaments producers like Thales,
Finmeccanica, EADS et BAE System, that have converted to the security
business.
It is easy to imagine the dangers represented by a power that could have at
its disposal the unlimited biometric and genetic information of all its citizens.
With such a power at hand, the extermination of the jews, which was
undertaken on the basis of incomparably less efficient documentation, would
have been total and incredibly swift. But I will not dwell on this important
aspect of the security problem. The reflections I would like to share with you
concern rather the transformation of political identity and of political
relationships that are involved in security technologies. This transformation is
so extreme, that we can legitimately ask not only if the society in which we
live is still a democratic one, but also if this society can be still
considered as political.
Christian Meier has shown how in fifth century a transformation of the
political conceptuality took place in Athens, which was grounded on what he
calls a politisation (politisierung) of citizenship. While till that moment the
fact of belonging to the polis was defined by a number of conditions and
social status of different kind for instance belonging to nobility or to a
certain cultual community, to be peasant or merchant, member of a certain
family etc- from now on citizenship became the main criterion of social
identity.
The result was a specifically greek conception of citizenship, in which the
fact that men had to behave as citizens found an institutional form. The
belonging to economical or religious communities was removed to a
secondary rank. The citizens of a democracy considered themselves as
members of the polis, only in so far as they devoted themselves to a political
life. Polis and politeia, city and citizenship constituted and defined one

another. Citizenship became in that way a form of life, by means of which the
polis constituted itself in a domain clearly distinct from the oikos, the house.
Politics became therefore a free public space as such opposed to the private
space, which was the reign of necessity. According to Meier, this specifically
greek process of politisation was transmitted to western politics, where
citizenship remained the decisive element.
The hypothesis I would like to propose to you is that this fundamental
political factor has entered an irrevocable process that we can only define as
a process of increasing depolitisation. What was in the beginning a way
of living , an essentially and irreducibly active condition, has now become a
purely passive juridical status, in which action and inaction, the private and
the public are progressively blurred and become indistinguishable. This
process of depolitisation of citizenship is so evident, that I will not dwell on it.
I will rather try to show how the paradigm of security and the security
apparatuses have played a decisive role in this process. The growing
extension to citizens of technologies which were conceived for criminals has
inevitably consequences on the political identity of the citizen. For the first
time in the history of humanity, identity is no longer a function of the social
personality and its recognition by others, but rather a function of biological
data, which cannot bear any relation to it, like the arabesques of the
fingerprints or the disposition of the genes in the double helix of DNA. The
most neutral and private thing becomes the decisive factor of social identity,
which loose therefore its public character.
If my identity is now determined by biological facts, that in no way depends
on my will and over which I have no control, then the construction of
something like a political and ethical identity becomes problematic. What
relationship can I establish with my fingerprints or my genetic code? The new
identity is an identity without the person, as it were, in which the space of
politics and ethics loses its sense and must be thought again from the ground
up. While the greek citizen was defined through the opposition between the
private and the public, the oikos , which is the place of reproductive life, and
the polis, place of political action, the modern citizen seems rather to move in
a zone of indifference beteween the private and the public, or , to quote
Hobbes terms, the physical and the political body.
The materialization in space of this zone of indifference is the video
surveillance of the streets and the squares of our cities. Here again an
apparatus that had been conceived for the prisons has been extended to
public places. But it is evident that a video recorded place is no more an
agora and becomes a hybrid of public and private, a zone of indifference
between the prison and the forum. This transformation of the political space
is certainly a complex phenomenon, that involves a multiplicity of causes,
and among them the birth of biopower holds a special place. The primacy of
the biological identity over the political identity is certainly linked to the
politicization of bare life in modern states. But one should never forget that
the leveling of social identity on body identity begun with the attempt to
identify the recidivist criminals. We should not be astonished if today the
normal relationship between the state and its citizens is defined by suspicion,
police filing and control. The unspoken principle which rules our society can
be stated like that: every citizen is a potential terrorist. But what is a
State which is ruled by such a principle? Can we still define it as democratic

State? Can we even consider it as being something political? In which kind of


State do we live today?
You will probably know that Michel Foucault, in his book Surveiller et punir
and in his courses at the Collge de France sketched a typological
classification of modern States. He shows how the State of the Ancien regime,
that he calls territorial or sovereign State and whose motto was faire mourir
et laisser vivre, evolves progressively in a population State and in a
disciplinary State, whose motto reverses now in faire vivre et laisser mourir,
as it will take care of the citizens life in order to produce healthy, well ordered
and manageable bodies.
The state in which we live now is no more a disciplinary State. Gilles Deleuze
suggested to call it Etat de contrle, control State, because what it wants,
is not to order and to impose discipline, but rather to manage and to control.
Deleuzes definition is correct, because management and control do not
necessarily coincide with order and discipline. No one has told it so clearly as
the Italian police officer, who, after the turmoils of Genoa in July 2001,
declared that the government did not want that the police maintains order,
but that it manages disorder.
American politologists, who have tried to analyze the constitutional
transformation involved in the Patriot Act and in the other laws which
followed September 2001, prefer to speak of a Security State. But what does
security here mean? It is during the French revolution that the notion of
security suret, as they used to say- is linked to the definition of police. The
laws of March 16, 1791 and August 11, 1792 introduce thus in the French
legislation the notion of police de suret (security police), which was
doomed to have a long history in modernity. If you read the debates which
preceded the votation of these laws, you will see that police and security
define one another, but no one among the speakers (Brissot, Heraut de
Schelle, Gensonn) is able to define police or security by themselves.
The debates focused on the situation of the police with respect to justice and
judicial power. Gensonn maintains that they are two separate and distinct
powers; yet, while the function of the judicial power is clear, it is impossible
to define the role of the police. An analysis of the debate shows that the
place and function of the police is undecidable and must remain undecidable,
because, if it were really absorbed in the judicial power, police could no more
exist. This is the discretionary power which still today defines the action of
the police officer, who, in a concrete situation of danger for the public
security, acts so to speak as a sovereign. But, even when he exerts this
discretionary power, he does not really take a decision, nor prepares, as is
usually stated, the judges decision. Every decision concerns the causes,
while the police acts on effects, which are by definition undecidable.
The name of this undecidable element is no more today, like it was in XVII
century, raison dEtat, State reason: it is rather security reasons. The
Security State is a police State: but, again, in the juridical theory, the police is
a kind of black hole. All we can say is that when the so called Science of the
police first appears in XVIII century, the police is brought back to its
etymology from the Greek politeia and opposed as such to politics. But it
is surprising to see that Police coincides now with the true political function,
while the term politics is reserved to the foreign policy. Thus Von Justi, in his
treatise on Policey Wissenschaft, calls Politik the relationship of a State with

other States, while he calls Polizei the relationship of a State with itself. It is
worthwhile to reflect upon this definition: (I quote): Police is the relationship
of a State with itself.
The hypothesis I would like to suggest here is that, placing itself under the
sign of security, modern State has left the domain of politics to enter a no
mans land, whose geography and whose borders are still unknown. The
Security State, whose name seems to refer to an absence of cares (securus
from sine cura) should, on the contrary, make us worry about the dangers it
involves for democracy, because in it political life has become
impossible, while democracy means precisely the possibility of a political
life.

ONLY pure violence in the form of revolution is able to fix


the current political paradox.
Agamben 13 - philosopher known for work on the state of exception and
homo sacer (Giorgio; awarded the Dr. Leopold Lucas Prize, teaches at
Accademia di Architettura di Mendrisio; For a Theory of Destituent Power;
Chronos; 11/16/2013; http://www.chronosmag.eu/index.php/g-agamben-for-atheory-of-destituent-power.html)
But I would like to conclude or better to simply stop my lecture (in
philosophy like in art, no conclusion is possible, you can only abandon your
work) with something which, as far as I can see now, is perhaps the most
urgent political problem. If the State we have in front of us is the Security
State I described, we have to think anew the traditional strategies of political
conflicts. What shall we do, what strategy shall we follow?
The Security paradigm implies that each dissention, each more or less violent
attempt to overhrow its order, become an opportunity to govern them in a
profitable direction. This is evident in the dialectics which binds tightly
together terrorism and State in an endless vicious spiral. Starting with French
revolution, the political tradition of modernity has conceived of radical
changes in the form of a revolutionary process that acts as the pouvoir
constituant, the constituent power of a new institutional order. I think that
we have to abandon this paradigm and try to think something as a puissance
destituante, a purely destituent power, that cannot be captured in the
spiral of security.
It is a destituent power of this sort that Benjamin has in mind in his essay On
the critique of violence when he tries to define a pure violence which could
break the false dialectics of lawmaking violence and law-preserving
violence, an example of which is Sorels proletarian general strike. On the
breaking of this cycle he writes in the end of the essay maintained by
mythic forms of law, on the destitution of law with all the forces on which it
depends, finally therefore on the abolition of State power, a new historical
epoch is founded. While a constituent power destroys law only to recreate it
in a new form, destituent power, in so far as it deposes once for all the law,
can open a really new historical epoch.
To think such a purely destituent power is not an easy task. Benjamin wrote
once that nothing is so anarchical as the bourgeois order. In the same sense,
Pasolini in his last movie has one of the four Sal masters saying to their
slaves: true anarchy is the anarchy of power. It is precisely because power

constitutes itself through the inclusion and the capture of anarchy and
anomy, that it is so difficult to have an immediate access to these
dimensions, it is so hard to think today something as a true anarchy or a true
anomy. I think that a praxis which would succeed in exposing clearly the
anarchy and the anomy captured in the Security government technologies
could act as a purely destituent power. A really new political dimension
becomes possible only when we grasp and depose the anarchy and the
anomy of power. But this is not only a theoretical task: it means first of all the
rediscovery of a form-of-life, the access to a new figure of that political life
whose memory the Security State tries at any price to cancel.

The only way to stop sovereign violence is to move the


politics away from the distinction of bare or naked life.
Edkins and Pin-Fat 05. Jenny Edkins, professor of international politics
at Prifysgol Aberystwyth University (in Wales) and Veronique Pin-Fat, senior
lecturer in politics at Manchester Universit, Through the Wire: Relations of
Power and Relations of Violence, Millennium - Journal of International Studies
2005, PG 8)
In Agambens analysis of sovereign power, the concentration camp is the
ultimate expression of the sovereign exception and the arena where
all life becomes nothing but bare life, life included by its exclusion:
Inasmuch as its inhabitants have been stripped of every political
status and reduced completely to naked life , the camp is also the
most absolute biopolitical space that has ever been realised a
space in which power confronts nothing other than pure biological
life without any mediation. The camp is the paradigm itself of
political space at the point in which politics becomes biopolitics and
the homo sacer becomes indistinguishable from the citizen. 31 In
modern biopolitics, Agamben argues, the zone of indistinction
exemplified in the camp is no longer localised and the state of
exception becomes the rule. The birth of the camp signals the point
at which the political system of the modern nation state ... enters
into lasting crisis, and the State decides to assume directly the care
of the nations biological life .32 Bare life becomes the
technologised subject of administration, governance and discipline,
and political life disappear s: The camp, which is now securely lodged
within the citys interior, is the new biopolitical nomos of the
planet.33This leads him to the question with which we began this section:
Is today a life of power (potenza) available?.34 For Agamben, such a
life is not possible within present forms of sovereign power and their
reliance on the division of pure living itself into forms of life. A life of
power, which for Agamben is a political life, would mean an exodus

from sovereign power, a non-statist politics, and the emancipation


from such a division.35 It would entail something like a form-of-life, a life
for which living itself would be at stake in its own living.36 He goes on to
elaborate what he means by this: Only if I am not already and solely
enacted, but rather delivered to a possibility and a power
[potenza] ... only then a form of life can become, in its own factness
and thingness, form-of-life, in which it is never possible to isolate
something like naked life. 37 When Agamben asks the question Is today
a life of power available? the Italian term he uses for power is potenza,
which, as his translator notes, can often resonate with implications of
potentiality as well as with decentralised or mass conceptions of force and
strength.38 In the phrase sovereign power he uses the different term,
potere, which refers to the might or authority of an already structured and
centralised capacity, often an institutionalised apparatus such as the
State.39 It is potere or sovereign power that founds itself ... on the
separation of a sphere of naked life from the context of the forms of
life .40 Form-of-life , a life in which something like naked life cannot
be separated, is a life of power as potenza. Significantly, Foucaults
notion of relations of power contains within it a sense of potentiality or
possibility comparable to potenza. As we have seen, freedom and resistance
are a central part of Foucauldian power relations. A power relation operates
on the field of possibilities in which the behaviour of active subjects is able to
inscribe itself. It is a set of actions on possible actions.41 Power as potenza in
Agamben is the realm of politics, or what we will call later properly political
power relations.

The alternative is the refusal to draw lines of the sovreign


exception- the division of those with and without
political life.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth
University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at
Manchester Universit, Through the Wire: Relations of Power and Relations of
Violence, Millennium - Journal of International Studies 20 05, PG 14-16)
One potential form of challenge to sovereign power cons is ts of a
refusal to draw any lines between zoe- and bios , inside and
outside.59 As we have shown, sovereign power does not involve a power
relation in Foucauldian terms. It is more appropriately considered to
have become a form of governance or technique of administration
through relationships of violence that reduce political subjects to
mere bare or naked life . In asking for a refusal to draw lines as a
possibility of challenge, then, we are not asking for the elimination
of power relations and consequently, we are not asking for the
erasure of the possibility of a mode of political being that is

empowered and empowering, is free and that speaks: quite the


opposite. Following Agamben, we are suggesting that it is only
through a refusal to draw any lines at all between forms of life (and
indeed, nothing less will do) that sovereign power as a form of violence
can be contested and a properly political power relation (a life of
power as potenza) reinstated . We could call this challenging the logic of
sovereign power through refusal . Our argument is that we can evade
sovereign power and reinstate a form of power relation by contesting
sovereign powers assumption of the right to draw lines, that is , by
contesting the sovereign ban. Any other challenge always inevitably
remains within this relationship of violence. To move outside it (and return to
a power relation) we need not only to contest its right to draw lines in
particular places, but also to resist the call to draw any lines of the
sort sovereign power demands. The grammar of sovereign power
cannot be resisted by challenging or fighting over where the lines
are drawn. Whilst, of course, this is a strategy that can be deployed, it
is not a challenge to sovereign power per se as it still tacitly or even
explicitly accepts that lines must be drawn somewhere (and
preferably more inclusively). Although such strategies contest the
violence of sovereign powers drawing of a particular line, they risk
replicating such violence in demanding the line be drawn
differently . This is because such forms of challenge fail to refuse
sovereign powers line-drawing ethos, an ethos which, as Agamben
points out, renders us all now homines sacri or bare life. Taking
Agambens conclusion on board, we now turn to look at how the assumption
of bare life can produce forms of challenge. Agamben puts it in terms of a
transformation:This biopolitical body that is bare life must itself
instead be transformed into the site for the constitution and
installation of a form of life that is wholly exhausted in bare life and
a bios that is only its own zoe-.... If we give the name form-of-life to
this being that is only its own bare existence and to this life that,
being its own form, remains inseparable from it we will witness the
emergence of a field of research beyond the terrain defined by the
intersection of politics and philosophy, medico-biological sciences
and jurisprudence. 60

American Law Link


The state of exception is already the norm in America
empirics prove the plan will be suspended
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 19-22
The placeboth logical and pragmaticof a theory of the state of exception in the American
constitution is in the dialectic between the powers of the president and those
of Congress. This dialectic has taken shape historically (and in an exemplary way
already beginning with the Civil War) as a conflict over supreme authority in an
emergency situation; or, in Schmittian terms (and this is surely significant in a country considered
to be the cradle of democracy), as a conflict over sovereign decision. The textual basis of the
conflict lies first of all in Article 1 of the constitution, which establishes that
[t]he 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 de- cide 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 [t]he President shall be
Commander in Chief of the Army and Navy of the United States. Both of these
problems reach their critical threshold with the Civil War (18611865). Acting
counter to the text of Article 1, on April 15, 1861, Lincoln de- creed that an
army of seventy-five thousand men was to be raised and convened a special session of Congress
for July 4. In the ten weeks that passed between April 15 and July 4, Lincoln in
fact acted as an absolute dictator (for this reason, in his book Dictatorship, Schmitt can refer
to it as a perfect example of com- missarial dictatorship: see 1921, 136). On April 27, with a
technically even more significant decision, he authorized the General in Chief of the Army
to sus- pend the writ of habeas corpus whenever he deemed it necessary
along military lines between Washington and Philadelphia, where there had been disturbances.
Furthermore, the presidents autonomy in deciding on extraordinary measures continued even after

Lincoln imposed censorship of the mail


and authorized the arrest and detention in military prisons of persons
suspected of disloyal and treasonable practices ). In the speech he delivered to
Congress when it was finally convened on July 4, the president openly justified his actions
as the holder of a supreme power to violate the constitution in a situation of
Congress was convened (thus, on February 14, 1862,

necessity. Whether strictly legal or not, he declared, the measures he had adopted had been taken
under what appeared to be a popular demand and a public necessity in the certainty that Congress
would ratify them. They were based on the conviction that even fundamental law could be violated if the
very existence of the union and the juridical order were at stake (Are all the laws but one to go
unexecuted, and the Government itself go to pieces lest that one be violated? See Rossiter 1948, 229). It
is obvious that in a wartime situation the conflict between the president and Congress is essentially
theoretical. The fact is that although Congress was perfectly aware that the constitutional jurisdictions had
been transgressed, it could do nothing but ratify the actions of the president, as it did on August 6, 1861.
Strengthened by this approval, on September 22, 1862, the president pro- claimed the emancipation of the
slaves on his authority alone and, two days later, generalized the state of exception throughout the entire
territory of the United States, authorizing the arrest and trial before courts martial of all Rebels and
Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer
enlistments, resisting militia drafts, or guilty of any dis- loyal practice, affording aid and comfort to Rebels
against the authority of the United States. By this point, the president of the United States was the holder
of the sovereign decision on the state of exception. According to American historians,

during World

War One President Wood- row Wilson personally assumed even broader
powers than those Abraham Lincoln had claimed. It is, however, necessary to specify that
instead of ignoring Congress, as Lincoln had done, Wilson preferred each time to have the powers in
question delegated to him by Congress. In this regard, his practice of gov- ernment is closer to the one that
would prevail in Europe in the same years, or to the current one, which instead of declaring the state of
exception prefers to have exceptional laws issued. In any case,

from 1917 to 1918, Congress

approved a series of acts (from the Espionage Act of June 1917 to the Overman Act of May 1918)
that granted the president complete control over the administration of the
country and not only prohibited disloyal activities (such as collaboration with the enemy and the

diffusion of false reports), but even made it a crime to will- fully utter, print, write, or publish any disloyal,
profane, scurrilous, or abusive language about the form of government of the United States. Because the
sovereign power of the president is essentially grounded in the emergency linked to a state of war, over
the course of the twentieth century the metaphor of war becomes an integral part of the presidential
political vocabu- lary whenever decisions considered to be of vital importance are being imposed. Thus, in
1933, Franklin D. Roosevelt was able to assume extraordinary powers to cope with the
Great Depression by presenting his actions as those of a com- mander during a military campaign: I
assume unhesitatingly the leadership of this great army of our people dedi- cated to a disciplined attack
upon our common problems. . . . I am prepared under my constitutional duty to recommend the measures
that a stricken Nation in the midst of a stricken world may require. . . . But in the event that the Congress
shall fail to take [the necessary measures] and in the event that the national emergency is still critical, I
shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisisbroad Executive power to wage war against the emergency, as
great as the power that would be given to me if we were in fact invaded by a foreign foe. (Roosevelt 1938,
1415) It is well not to forget that, from the constitutional standpoint, the New Deal was realized by
delegating to the president (through a series of statutes culmi- nating in the National Recovery Act of June
16, 1933) an unlimited power to regulate and control every aspect of the economic life of the countrya
fact that is in perfect conformity with the already mentioned parallelism between military and economic
emergencies that characterizes the politics of the twen- tieth century. The outbreak of World War Two
extended these powers with the proclama- tion of a limited national emergency on September 8, 1939,
which became un- limited on May 27, 1941. On September 7, 1942, while requesting that Congress repeal
a law concerning economic matters, the president renewed his claim to sovereign powers during the
emergency: In the event that the Congress should fail to act, and act adequately, I shall accept the
responsibility, and I will act. . . . The American people can . . . be sure that I shall not hesitate to use every
power vested in me to accomplish the defeat of our enemies in any part of the world where our own safety

The most spectacular violation of civil


rights (all the more serious because of its solely racial motivation) occurred on February 19, 1942,
with the internment of sev- enty thousand American citizens of Japanese
descent who resided on the West Coast (along with forty thousand Japanese citizens who
lived and worked there). President Bushs decision to refer to himself constantly as
the Comman- der in Chief of the Army after September 11, 2001, must be
considered in the context of this presidential claim to sovereign powers in
demands such defeat (Rossiter 1948, 26869).

emergency situations. If, as we have seen, the assumption of this title entails a direct reference to the
state of exception, then Bush is attempting to produce a situation in which the emergency becomes the

the very distinction between peace and war (and between foreign and
civil war) becomes impossible.
rule, and

The problem with the US Constitution is that is allows the


president to create a state of exception
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin
Attell, copyright 2005, University of Chicago Press,
http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[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."]]]

Lincoln suspended habeas corpus to protect America,


which is a case of law destruction to preserve law
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin
Attell, copyright 2005, University of Chicago Press,
http://www.press.uchicago.edu/Misc/Chicago/009254.html
Both of these problems reach their critical threshold with the Civil
War (18611865). Acting counter to the text of Article 1, on April 15, 1861,
Lincoln decreed that an army of seventy-five thousand men was to
be raised and convened a special session of Congress for July 4. In
the ten weeks that passed between April 15 and July 4, Lincoln in
fact acted as an absolute dictator (for this reason, in his book
Dictatorship, Schmitt can refer to it as a perfect example of commissarial
dictatorship. On April 27, with a technically even more significant
decision, he authorized the General in Chief of the Army to suspend
the writ of habeas corpus whenever he deemed it necessary along
the military line between Washington and Philadelphia, where there
had been disturbances. Furthermore, the president's autonomy in
deciding on extraordinary measures continued even after Congress
was convened (thus, on February 14, 1862, Lincoln imposed censorship of
the mail and authorized the arrest and detention in military prisons of
persons suspected of "disloyal and treasonable practices").
In the speech he delivered to Congress when it was finally convened
on July 4, the president openly justified his actions as the holder of a
supreme power to violate the constitution in a situation of necessity.
" Whether strictly legal or not," he declared, the measures he had
adopted had been taken "under what appeared to be a popular
demand and a public necessity" in the certainty that Congress
would ratify them. They were based on the conviction that even
fundamental law could be violated if the very existence of the union
and the juridical order were at stake ("Are all the laws but one to go
unexecuted, and the Government itself go to pieces lest that one be
violated?"
It is obvious that in a wartime situation the conflict between the president
and Congress is essentially theoretical. The fact is that although Congress
was perfectly aware that the constitutional jurisdictions had been

transgressed, it could do nothing but ratify the actions of the president, as it


did on August 6, 1861. Strengthened by this approval, on September 22,
1862, the president proclaimed the emancipation of the slaves on his
authority alone and, two days later, generalized the state of exception
throughout the entire territory of the United States, authorizing the arrest and
trial before courts martial of "all Rebels and Insurgents, their aiders and
abettors within the United States, and all persons discouraging volunteer
enlistments, resisting militia drafts, or guilty of any disloyal practice, affording
aid and comfort to Rebels against the authority of the United States." By this
point, the president of the United States was the holder of the sovereign
decision on the state of exception.

Woodrow Wilson essentially destroyed the first


amendment to protect America
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin
Attell, copyright 2005, University of Chicago Press,
http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[According to American historians, during World War One President
Woodrow Wilson personally assumed even broader powers than
those Abraham Lincoln had claimed. It is, however, necessary to specify
that instead of ignoring Congress, as Lincoln had done, Wilson preferred each
time to have the powers in question delegated to him by Congress. In this
regard, his practice of government is closer to the one that would prevail in
Europe in the same years, or to the current one, which instead of declaring
the state of exception prefers to have exceptional laws issued. In any case,
from 1917 to 1918, Congress approved a series of acts (from the
Espionage Act of June 1917 to the Overman Act of May 1918) that
granted the president complete control over the administration of
the country and not only prohibited disloyal activities (such as
collaboration with the enemy and the diffusion of false reports), but
even made it a crime to "willfully utter, print, write, or publish any
disloyal, profane, scurrilous, or abusive language about the form of
government of the United States."]]]

Franklin D Roosevelt denied Japanese American the rights


to liberty and the pursuit of happiness to protect
America
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin
Attell, copyright 2005, University of Chicago Press,
http://www.press.uchicago.edu/Misc/Chicago/009254.html
[[[Because the sovereign power of the president is essentially grounded in
the emergency linked to a state of war, over the course of the twentieth
century the metaphor of war becomes an integral part of the presidential
political vocabulary whenever decisions considered to be of vital importance

are being imposed. Thus, in 1933, Franklin D. Roosevelt was able to


assume extraordinary powers to cope with the Great Depression by
presenting his actions as those of a commander during a military
campaign:
I assume unhesitatingly the leadership of this great army of our people
dedicated to a disciplined attack upon our common problems.I am prepared
under my constitutional duty to recommend the measures that a stricken
Nation in the midst of a stricken world may require.But in the event that the
Congress shall fail to take [the necessary measures] and in the event that the
national emergency is still critical, I shall not evade the clear course of duty
that will then confront me. I shall ask the Congress for the one remaining
instrument to meet the crisisbroad Executive power to wage war against
the emergency, as great as the power that would be given to me if we were
in fact invaded by a foreign foe.
It is well not to forget that, from the constitutional standpoint, the New Deal
was realized by delegating to the president (through a series of statutes
culminating in the National Recovery Act of June 16, 1933) an unlimited
power to regulate and control every aspect of the economic life of the
countrya fact that is in perfect conformity with the already mentioned
parallelism between military and economic emergencies that characterizes
the politics of the twentieth century.
The outbreak of World War Two extended these powers with the proclamation
of a "limited" national emergency on September 8, 1939, which became
unlimited on May 27, 1941. On September 7, 1942, while requesting that
Congress repeal a law concerning economic matters, the president renewed
his claim to sovereign powers during the emergency: "In the event that the
Congress should fail to act, and act adequately, I shall accept the
responsibility, and I will act.The American people canbe sure that I shall
not hesitate to use every power vested in me to accomplish the defeat of our
enemies in any part of the world where our own safety demands such
defeat." The most spectacular violation of civil rights (all the more
serious because of its solely racial motivation) occurred on February
19, 1942, with the internment of seventy thousand American citizens
of Japanese descent who resided on the West Coast (along with forty
thousand Japanese citizens who lived and worked there).]]]

Empirics prove: after the event of a terrorist attack, laws


are ignored
Agamben, 2004
Giorgio, excerpt from State of Exception, ebook excerpt translated by Kevin
Attell, copyright 2005, University of Chicago Press,
http://www.press.uchicago.edu/Misc/Chicago/009254.html
President Bush's decision to refer to himself constantly as the
"Commander in Chief of the Army" after September 11, 2001, must
be considered in the context of this presidential claim to sovereign
powers in emergency situations. If, as we have seen, the assumption of
this title entails a direct reference to the state of exception, then

Bush is attempting to produce a situation in which the emergency


becomes the rule, and the very distinction between peace and war
(and between foreign and civil war) becomes impossible.
FOR SOMEONE WHO HAS BEEN following the career of the Italian philosopher
Giorgio Agamben from the beginning perhaps even including his cameo
appearance in Pier Paolo Pasolinis The Gospel According to St.
Matthew (1964) his current notoriety as a political thinker might seem
surprising and even baffling. A good portion of Agambens early work focuses
on questions of aesthetics, and much of the rest is devoted to careful and
idiosyncratic readings of major figures in the history of philosophy. Familiarity
with his most recent writing would likely increase that puzzlement. In addition
to the ongoing, overtly political Homo Sacer series which so far
includes Homo Sacer: Sovereign Power and Bare Life (1995; translated
1998), State of Exception (2003; translated 2005), and Remnants of
Auschwitz: The Witness and the Archive (1998; translated 2002) he has
turned his attention to a commentary on St. Pauls Epistle to the Romans,
an enigmatic and fragmentary study of the relationship between the human
and the animal, and a series of investigations into the history of Christian
theology.
None of this sounds particularly timely or trendy. During the Bush years,
however, Agambens investigations of sovereign authority, the state of
emergency (or exception), and the concept of bare life seemed to speak
directly to the most immediate and pressing political concerns of the day: the
emergency powers claimed in the War on Terror, the fate of the detainees
kept in the lawless zone of Guantnamo Bay, and the general reassertion of
the kind of state sovereignty that globalization was supposed to be rendering
irrelevant. Despite being coincidentally topical, however, there is still much
that is puzzling about the political works themselves. Homo Sacer, which
infamously claims that the paradigm of all modern politics is the
concentration camp, proceeds by way of an investigation of an obscure figure
in Roman law the homo sacer (sacred man) who could be killed with
impunity but not sacrificed and stops to deal with Pindar, Hlderlin, and
many other unexpected figures along the way. (There are also
werewolves.) Remnants of Auschwitz focuses on the Muselmnner, the
most degraded and hopeless victims of the Shoah, but spends a surprising
amount of space dealing with questions of structural linguistics. State of
Exception, in many ways the most straightforward of the three Homo
Sacer books, provides a history of emergency powers in the Roman and
modern world. But instead of making the seemingly obvious claim that we
should stop relying on emergency powers and stick with normal legal
structures, Agamben hints at a radically different solution that he believes to
be implicit in a Kafka story in which Alexander the Greats horse Bucephalus
becomes a lawyer.
What is going on here? That was certainly my question when I first
read Homo Sacer, and in my stubborn determination to figure out the answer,
I wound up reading the majority of Agambens works, and even translating
some of them. Its on the occasion of the publication of two of my translations

The Highest Poverty: Monastic Rules and Form-of-Life, and Opus Dei: An
Archeology of Duty (Stanford UP, 2013) that I wrote this essay, which
shares some of the patterns I picked up along the way.
I.
A striking feature of Agambens work is its tendency to leap immediately from
the tiniest detail to the broadest possible generalization. In Homo Sacer, for
instance, we learn that the entire history of Western political thought was
always heading toward the horrors of totalitarianism, as we can tell by taking
a look at an obscure corner of ancient Roman law. Similarly, while his late
works boast increasingly large-scale ambitions, they are nonetheless written
in a fragmentary form and always make room for digressions and asides
(often in the form of notes inserted right into the middle of the text,
introduced by the Hebrew letter "aleph").
These idiosyncratic traits can, I believe, be traced back to Agambens two
most significant influences: Walter Benjamin and Martin Heidegger. Agamben
served as editor of the Italian edition of Benjamins complete works, which
consist primarily of dense essays and cryptic fragments, the majority of them
not published during Benjamins lifetime. Its clear that Agamben admires the
compression and vast interdisciplinary range of Benjamins work and aspires
to similar effects in his own writing. The link to Heidegger is perhaps even
closer: as a student in one of Heideggers postwar seminars, Agamben picked
up the great philosophers ambition to provide an overarching account of the
history of the West, and use that history to shed light on the contemporary
world. From both Heidegger and Benjamin, Agamben inherits, on the one
hand, a careful attention to philological detail and questions of translation,
and, on the other, a marked tendency toward conceptual abstraction.
(Heidegger, for instance, spent his entire career investigating the concept of
Being, while some of Benjamins most famous essays are devoted to the
broadest possible topics, such as violence, language, or history.)
It is not only Agambens methods that stem from these two thinkers, but
often his path of investigation as well. The entire Homo Sacer series can be
read as a follow-up on Benjamins suggestion, in his Critique of
Violence (1921), that someone really ought to look into the origin of the
concept of the sacredness of human life. His study of animality in The
Open is, by contrast, centered on one of Heideggers writings on that
question, and many of the chapters expand on Heideggers own key
references. Agambens work can be read in part as a series of footnotes to
the two great thinkers who have most inspired him, even if very few of his
writings presuppose detailed knowledge of either.
II.
At this point, one could rightly ask what in Agambens work is his own
aside, of course, from the aleph-notes. Some of his originality can be traced
to the way he brings together Heidegger and Benjamin, along with other
major figures such as Michel Foucault, Carl Schmitt, Hannah Arendt, and

Aristotle. Leaving aside questions of intellectual genealogy, however, much of


what is most distinctive about Agambens style of thought comes from his
love of paradox and contradiction. For instance, following up Benjamins
research agenda, he traces the notion of the sacredness of human life back to
the homo sacer an origin that, far from indicating that human life has
exceptional and unconditional value, actually refers to a form of human life
that has been deprived of all legal protection. And instead of marveling at
how much our concept of the sacredness of human life has changed, he
argues that the old meaning still stands: the state that respects the
sacredness of human life is actually a machine that threatens to turn every
one of us into a defenseless homo sacer.
This love of paradox is not simply a rhetorical tic. It deeply shapes Agambens
political analysis, which seeks out places where our accustomed categories
begin to overlap and break down. For example, he is fascinated with the
figure of the sovereign ruler who can suspend the law, because of what he
calls the paradox of sovereignty, namely the fact that the sovereign is, at
the same time, outside and inside the juridical order. On the one hand, the
sovereign who declares a state of emergency can freely violate the letter of
the law; on the other, his actions are legitimated by reference to the law and
(at least ideally) aim to restore the normal conditions for the rule of law.
Sovereign action in the state of emergency is thus a strange kind of legal
illegality or is it illegal legality? A related dynamic is at work with the figure
of the homo sacer, who stands as a kind of metaphor for all people excluded
from official legal protection and reduced to a state of bare life, such as
refugees, enemy combatants, and concentration camp victims. On the one
hand, they are excluded from the realm of law, but this very exclusion is itself
a legal act, indeed one of the most forceful and decisive of legal acts. Thus
the person reduced to bare life is excluded in, or included out.
The greatest contradiction of all, however, is the way that the sovereign and
the homo sacers respective relationships to the law relationships of
exclusive inclusion or inclusive exclusion overlap. On a purely formal level,
the same paradoxical and contradictory relationship to the law holds equally
for the mightiest ruler as for the most desperate victim. Indeed, these two
paradoxes begin to become mirror images of each other: At the extreme
limits of the order, the sovereign and homo sacer present two symmetrical
figures that have the same structure and are correlative: the sovereign is the
one with respect to whom all men are potentially homines sacri, and homo
sacer is the one with respect to whom all men act as sovereigns.
Agamben believes that our political system is increasingly breaking down and
that extra-legal but legally validated emergency power is no longer the
exception, but the rule. Here we might think of the ways in which the
supposed emergency of the War on Terror, which has now dragged on for
well over 10 years and shows no sign of ending, is used to legitimate
increasingly extreme executive powers (including, most recently, President
Obamas claim that he has the right to assassinate US citizens suspected of
terrorism without trial and on US soil). This breakdown in legal procedure is
not a moment of weakness, however, but the moment when the law displays

its power in its rawest and most deadly form. As Agamben puts it in State of
Exception, when the state of exception [] becomes the rule, then the
juridico-political system transforms itself into a killing machine.

Border Link
Link-The border is a permanent state of exception.
Salter,

professor at the School of Political Studies, University of Ottawa, 20 08. (Mark, He


was the 2014 Canadian Political Science Association Teaching Excellence Prize winner. In 2007,
he was the recipient of the National Capital Educator's Award and the Excellence in Education
Prize at the University of Ottawa. In autumn 2008, he was Visiting Fellow at the Centre for
Research in the Arts, Social Sciences, and Humanities, Wolfson College, and Visiting Scholar at
the Centre of International Studies at the University of Cambridge. He is editor of "Making
Things International 1" and "Making Things International 2," "Research Methods in Critical
Security Studies" with Can E. Mutlu, "Politics at the Airport," as well as special issues on
"Border Security as Practice," "Critical Security Studies in Canada," and the Forums of
International Political Sociology. Salter is also Associate Editor of "International Political
Sociology" and "Security Dialogue." When the exception becomes the rule: borders,

sovereignty, and citizenship, Citizenship Studies, Citizenship Studies.


http://www.campusincamps.ps/wp-content/uploads/2012/10/Salter-Exceptionbecomes-the-rule.pdf)
Provocatively argued by Agamben in Homo sacer and The State of
Exception, the foundational power of the sovereign is the ability to
decide if the law applies to a situation or if the law is held in
abeyance due to an emergence or crisis. Since the sovereign power to
decide is itself prior to and outside of the law, Agamben is anxious about the
expansion of executive powers since the inauguration of the war on terror.
The state of exception is a zone of indistinction, between inside
and outside where there is no difference between law and force,
wherein individuals are subject to the law but not subjects in the law
(1995:181). The use of emergency powers and the use of all means
necessary in the war on terror demonstrate that the state of
exception tends increasingly to appear as the dominant paradigm of
government in contemporary politics (2005:2). But, in this article, I will
not be examining the role of the USA PATRIOT Act, Guantanamo Bay, Camp XRay, Abu Ghraib prison, the black sites in Eastern Europe, extraordinary
rendition, domestic surveillance programs, or other clear indications of the
rise of executive power. Instead, I argue that the state of exception is
always already fundamental to sovereign power, and in particular
that the sovereign ability to define and limit the population is a longstanding institution of the state, intimately tied into the notion of
sovereign territoriality and the imaginary of borders implied in this
conception of bounded space. The border is a permanent state of
exception. Agamben gestures towards this: the question of borders
becomes all the more urgent (2005:1). But, rather than the metaphorical
border between normal and exceptional, I argue that we take the material
border seriously. Wherever the border is located, however it is administered ,
the border has been and continues to be an on-going state of
exception, based on a prior assumption of the authority to define a

particular security/territory/population (Foucault). The decision to enter


into the sovereign compact cannot take place within that contract it must
be outside normal politics. Agamben argues that the foundation of the polis in
Hobbes Leviathan reveals this essential political arrangement in the failure of
the sovereign to renounce all rights, rather than the renunciation of the right
to everything which all others give up (1998:106). And yet, to naturalize
and make seamless the claim of the sovereign to rule, in order to
have a clear contract with a population, that decision to define the
contractees must be obscured and hidden from view. If this decision
were not seen to be arbitrary and external, prior to the law, every
administrative decision becomes an issue of the founding contract. We see
this conundrum illustrated in a recent debate over Qubec sovereignty. A
province of Canada with a distinct, Francophone culture, since long before
Federation in 3 1867 or the repatriation of the Constitution in 1982,
Quebecers have insisted on its status as a nation, which demands
sovereignty. Prime Minister Trudeau, during the negotiations for the
constitution, said Si le Canada est divisible, le Qubec doit tre aussi
divisible. (if Canada is divisible, so too should Quebec be divisible).1 Some
public figures argued in the recent 1995 referendum that each municipality
and community must hold a referendum and in particular how can the
sovereignty of aboriginal communities with the Federal government be
determined (treaty process, negotiation, referenda?). When the essential
contract to create Canada is questioned, the question of the founding
contract of Quebec is revealed, and every founding contract is questioned.
Manning argues that: The reliance on the linear narrative of history in
the telling of the story of a people results in the continuing
conflation of population and territory for the promotion of a united
national identity. Similarly, in Quebec, we witness the perpetuation
of a myth of ethnic homogeneity as a central pillar in the quest for
sovereignty (Manning 2003: 123). I would add that this is not only
connected to ideas about community and homogeneity (and the ability of the
sovereign to create, police, and protect that identity), but also about the
ability of the sovereign to inscribe a founding moment which shuts down the
past and renders primary decision out of politics (a politics of forgetting).2 All
communities are essentially undemocratic, arbitrary, and in this
sense pre-political. It is the performance of the sovereign as
protector against the collapse of all community that hides the
inherent violence in this primary contract. As Agamben avers,
sovereign isthe guardian who prevents the undecidable threshold between
violence and right, nature and language, from coming to light (2000:113).
The decision to allow entry into the political community, and to
become a citizen subject of the sovereign, must be a decision
without recourse, without appeal, and without debate. Recourse,
appeal, debate in Rancieres terms, disagreement gives lie to the claim
to fixity and stability, upon which the claim to sovereign power is built. The
constitution of the sovereign population cannot be made democratically. In its
application to the border, we would say that the citizen gives up his/her
right to freely enter the state while the sovereign does not
renounce his/her right to ban individuals from entry into the state . It

is true that the sovereign does not accept any obligation to accept (even)
citizens back into the territory especially if the sovereign decides that the
citizen constitutes a danger to the sovereign. The sovereign contract is
redrawn each time a citizen requests entry to a state, either his/her
own state or another state: the foundation is not an event achieved
once and for all but is continually operative in the civil state in the
form of the sovereign decision (2000: 109). Recall the form of the
passport, which the state also accepts no obligation to issue even to citizens
and in particular to citizens which it considers dangerous. 3 The inscription on
the passport is a statement by a representative of the citizens sovereign to
request and require in the name of the [insert sovereign] all those whom it
may concern to allow the bearer to pass freely without let or hindrance and to
afford him/her every assistance and protection of which he/she may stand in
need (Salter 2003: 3-5). Entry into a foreign state is representative of the
interaction of two sovereigns not the traveler and any sovereign. In
essence, entry into another the jurisdiction of ones own or another
sovereign territory is a reaffirmation that the sovereign, and not the
citizen, is the seat of authority, rights, and politics. This is true even
when the decision at the border is made by a representative of the
sovereign. The raw decision to admit or expel an individual at the 4 border
takes place both inside a normal bureaucracy and outside the normal
condition of politics. Butlers argument that the state of exception is
normalized through the governmentality of bureaucracy is
particularly persuasive for everyday decisions at the border, as well
as sites such as Guantanamo Bay (2004). Part of the design of the
modern and neoliberal state in all its apparatus is to hide the functioning of
raw power and internal the panoptic gaze of the state but the border
renders this power naked. We must ask the sovereign for admittance. Even if
we have a previous contract, or can claim that we are subject to no other
contract and thus suppliant ourselves, there is no right of entry (only a right
to ask). The law is always suspended at the border, because the decision of
entrance to the territory and correspondent membership in the community is
irreducible to force. As Schmitt argues, the essence of the states
sovereignty [is] not the monopoly to coerce or rule, but the monopoly to
decide (1985:13). Agamben links the state of exception with the decision to
include or exclude from the law. In the construction of the
inside/outside, state/anarchy universe of political meaning, the
decision to admit to the safe haven of the domestic or expel into
the dangerous world is precisely a decision to include the subject to
the law or exclude the subject from the law. Agamben says the
relation of the exception is the relation of ban. He who has been banned is
not, in fact, simply set outside the law and made indifferent to it but rather
abandoned by it, that is, exposed and threatened on the threshold in which
life and law, outside and inside, become indistinguishable (1995:28).4 In his
writings on the ban, Agamben describes the figure of the exile as more
original than the Schmittian opposition between friend and enemy, fellow
citizen and foreigner. The estrarity of the person held in the sovereign ban is

more intimate and primary than the extraneousness of the foreigner


(1995:110). This is the crux of the utility of Agamben for the study of the
border: the frontier examination which polices, subjectifies, performs
both the sovereign and the citizen to him/herself, is more primary
than the political relation of the citizen/foreigner. More than the
exclusion of the other, the primary political relationship is the anxiety, the
uncertainty, the constant uncertainty that pertains at the border because
there is no inside: there is no right of entry. The citizen is undone and the
sovereign to ban reinscribed at every border, in every decision.
There are two weaknesses in Agambens analysis that the case of the border
resolves. First, Agamben fails to recognize that the border is a place
where this sovereign power to decide is exercised every day that
every decision of the border guards is a decision to ban or to include
in the law. Whether those decisions are guided by bureaucratic procedures
or administrative thought-work, they are outside the law (Heyman 2001).
The legal recognition of administrative discretion is the bureaucratic fig leaf
of this executive power. This discretionary admit/expel decision is entirely
extra-judicial. No law or set of policies can possibly describe all the
individuals or cases that can be admitted or grounds for expulsion. This is not
to dispute the contention that the front-line workers perceive themselves to
be constrained by risk categories and security algorithms (Amoore 2006; Bigo
and Guild 2006). Rather, it is to say these policies, procedures, and practices
rely on the discretion: the moment of interpretation of a personal narrative by
an agent of the state. This is explained further in the next section on the
performativity of borders. There is no way to adjudicate the truth-claims of
the traveler that can be described: the border guard relies on his/her
judgment and experience (which has been supported by court decisions in
U.S., Canada, and Australia).5 While this is called administrative discretion
within the bureaucracy and public administration literature, it is a decision
that is not grounded in fact, but solely in 5 the power to decide. The
decision of exile is irreducible it is the decision that the sovereign
owes that individual no hospitality, no protection, no law, only
violence. And, all travelers pass through that moment of sovereign
isolation, when, during the border examination, we perform both
our citizenship and the states sovereignty. Second, worse than simply
neglecting the border as a productive example, Agamben imagines away the
space of the border in this formulation of the spacelessness of the limit of the
community. The limit is not simply the metaphorical wolf-man, and this
distracts from the material practices of exclusion at the border. The border
is a space of indistinction in which citizens, foreigners, exiles,
refugee and asylum seekers are all held in an extra-political
nowhere while the sovereign exercises a decision. I want to argue
strongly that the space of decision is not no-place or nowhere. Borders,
even when they are virtual or delocalized, take place within a particular
space. Lfgren uses the term pedagogy of space to direct our attention to
the ways in which the borderscape is arranged against a background of
monumental buildings or nondescript barracks with endless corridors,

warning signs and surveillance techniques, the manners in which movements


across borders are dramatized into rituals of passage, stages and shops, and
finally the actual choreographing of bodies and their modes of movements
(Lfgren, 1999: 25). There is something unique about the border, which
marks it as different from the borderland. As Rumford argues, the
networking of borders and their diffusion throughout society have led to a
renewed importance for the land border, at least in particular instances
(2006: 158). When the power to admit/exclude is exercised, that place
becomes the limit of politics. While I am not denying that dispersed and
preemptive techniques of border policing are important (Wilson and Weber
forthcoming, Walters 2006, Salter 2007), I would argue that the state of
exception at the border exists only at that examination (indeed wherever and
whenever that examination takes place). Thus, while we must take Balibars
injunction that borders are polysemic that they are experienced
differently by different classes of people, it is my core argument that the
moment of alienation, the moment of examination and terror, is inherent in
the border (2002: 81). In some senses the degree to which the border is
polysemic is the degree to which the nature of the border crossing is
recognized as exceptional: refugees and asylum claimants need no
explanation of the border as a state of exception, whereas those kinetic
elite that pass across borders easily may need more.6 It is important to
analyze the moment of decision at the border, even as the border and the
decision are becoming more diffuse and dispersed. In the next section, I want
to engage this nexus of decision and borders.

Law Link
Law is violence
Auerbach, submitted paper to After 1968, 2007

Anthony, presented a paper to the seminar After 1968, led by Katja


Diefenbach, Remarks on Walter Benjamins Critique of Violence Remarks on
Walter Benjamins Critique of Violence, Anthony Auerbach,
http://aauerbach.info/research/urban/benjamin_violence.html
[[[Benjamins critique thus neither advocates, condones nor rejects
violence, but begins with a fundamental assessment of the paralysis of
the dominant trends in the discussion of violence, pointing out how opposing
sides of the debate both lead to contradictions because they share terms
which are accepted as axiomatic, but which are not in fact independent.
Benjamin argues that it is not possible to separate violence from
law; that all violence is either law-making or law-preserving; that all
law, however remote it may seem from its origins and from the
forces which maintain it, is latent violence. Therefore it is violence
itself which decides what violence is justifiable for what ends. This
circle defines violence self-evidently as a natural means of achieving
natural or legal ends.
The power established by law-making violence threatens the lawbreaker with law-preserving violence. But this threat is subject to fate,
because the criminal might not get caught, and his or her violation of the
law threatens to become in turn a law-making violence and thus a challenge
to existing power. However, if it is not just a matter of getting away with it at
an individual level and the challenge to existing power is self-conscious and
victorious as in a political revolution then the contest can only begin
again. Benjamin characterises this as a mythical cycle bound to endless
repetition like the mythical punishments or perhaps bound to violent
tautology as in Kafkas penal colony where the punishment consists in the
mechanical inscription of the law on the body of the guilty victim.]]]

These are the cycles of repetition which constitute history as a series of


disasters prompted by fate and which at all costs must be stopped. Here,
what is at stake in philosophical history becomes a personal risk. In Critique
of Violence Benjamin proposes what he calls pure means, that is, means
without ends. For it is the logic of ends which powers the mythical machine.
Benjamin acknowledges possible forms of non-violent resolution of potential
conflicts between people, but these are immaterial because the are not legal,
and as soon as they would be codified by legal contract or treaty, would
again be subject to force.
Benjamin locates his answer to such insoluble problems in the crossing of the
idea of a proletarian general strike which he gets from Sorel and the idea of
divine violence. Ill come to divine violence in a moment. First, I think it

would be a mistake to put too much emphasis on proletarian in Benjamins


use of the term and thus lend it a more direct relation to Marx that it really
has. What is important for Benjamin is not the proletarian as such but the
distinction Sorel makes between what he called a proletarian general strike
and a political general strike, the latter being a form of violence intended to
extort concessions for workers from the bosses, but without fundamentally
changing the relationship between them. The hypothetical proletarian
general strike on the other hand makes no demands other than the complete
transformation of social relations and of work itself. It announces only the
intention of abolishing the state and its powers, not of usurping them.
Benjamin regards this strike as pure means and therefore not violent, even
though the strike action itself (that is, not working) is the same as a violent
extortionate strike. It is not violent because its ends are, at least from the
point of view of a pragmatist, radically senseless, unreasonable and
extravagant. Its only intention is non-participation in the logic of ends and
means and a refusal of mythical imperatives. This intention is perhaps the
seed of its metaphysical failure, certainly enough to provoke violent
suppression by existing powers. Clearly, this strike signals a utopian ambition
or messianic hope which Benjamin might share with Marx.
Benjamins messianism consists in the demand that everything must be
different, and moreover that there is work for him personally to do in bringing
about this transfiguration. (That is, not just waiting and hoping.) This is what
resonates in Benjamins thought with the Jewish messianic tradition, although
that doesnt necessarily authorise a Talmudic approach to Benjamins text.
Indeed, caution is required in dealing with Benjamins theology. The divine, in
Critique of Violence, is everything which stands in absolute opposition to the
mythical: Just as in all spheres God opposes myth, mythical violence is
confronted by the divine. [...] If mythical violence is law-making, divine
violence is law-destroying. (150). I might add: this also is myth.
Turning now to the situatedness of Benjamins meditation, it would be nice to
be able to give you clear and concise overview of the political and social
conditions in which Benjamin wrote. Perhaps at least as instructive as we go
on to discuss recent interpretations of Critique of Violence might be to
consider, in contrast, our situatedness as readers. Where we are today, in a
peaceful Europe, we have little reason to fear a general mobilisation to war,
an outbreak of proletarian revolution or class conflict. While organised labour
threatens no more than occasional inconvenience, we have much to benefit
from the states organisation of unemployment (not to mention the
decimation of manufacturing industry, informalisation of labour etc.),
including the expansion and extension of higher education as embodied by
the Jan van Eyck Academie. We are hardly concerned with anti-Semitism,
which has gone out of fashion amongst our class besides being officially
repressed along with the consciousness of the destruction of European Jewry
which began not long after Benjamin wrote. We experience prejudice mainly
as privilege and consider our protection from racist violence and criminality in
general as a right.

The war supposedly to end all wars which ended in 1918 left Germany in a
state of political confusion and violence which we would sooner associate
with present-day Iraq than modern Europe. But it isnt the parallel with
another state which has recently suffered a military defeat, massdemobilisation and the deposition of an autocratic ruler which matters. The
question is, what is the possible relation between the abstract considerations
of violence with their legendary exemplars and the reference Benjamin
makes to contemporary European conditions (135) which would have
needed no illustration in 1921.
Benjamin was not alone in perceiving a historic chance when the ancien
rgime quit the scene. The Emperor abdicated on 9 November 1918, when
revolution threatened to succeed mutiny. Within hours, two republics were
declared, bringing the split over support for the war which had divided
German socialists in 1914 into an open, violent contest for the state. In an
attempt to forestall the revolutionary forces which might have been stirred by
the intended announcement of a constitutional monarchy, and to secure the
succession of the SPD, Philipp Scheidemann declared the first German
republic from the balcony of the Reichstag. This half-hearted republic was
Scheidemanns own initiative, but could not be revoked. Karl Liebknecht
meanwhile proclaimed a free socialist republic from the balcony of the Royal
Palace itself and pledged revolution. The showdown came in January 1919
with the so-called Spartacist Uprising, which proceeded, with KPD and USPD
backing, from the occupation of buildings by workers to mass demonstrations
and general strike. Without a clear plan, this revolution failed because of
disputes among the leadership concerning the use of violence and ultimately
because the workers were no match for the paramilitary forces unleashed to
crush them. The government deployed Freikorps troops mustered by former
army staff to suppress communist uprisings throughout Germany. The
Freikorps have been variously described as private armies recruited by former
generals, anti-republican paramilitary organisations, freelance right-wing
militias, gangsters of the extreme Right, and, the men who could not be
debrutalised after the war (according to Hermann Gring). They carried out
their (quasi-police) work with enthusiasm and savagery and without effective
political control. Famously responsible for the abduction, torture and murder
of Liebknecht and Rosa Luxemburg following the failed January Revolution
a failure still celebrated in Berlin today the Freikorps had a hand in
hundreds political murders perpetrated without fear of the law. In contrast,
left-wing militants were pursued and severely punished by the judicial
authorities as well as by right-wing thugs.
The SPD-led government signed Treaty of Versailles and thus got the blame
not only for the onerous and humiliating terms of the treaty, but for
Germanys defeat itself, which conservatives and militarists (who had started
and lost the war) attributed to a stab in the back. The government had no
power to disband the Freikorps militias as the peace treaty required and
indeed still relied on them to repress left-wing agitation. In 1920 the Freikorps
staged its own coup dtat the so-called Kapp Putsch which, when the
regular army refused to intervene, was answered by a general strike such as
the SPD had failed to call in 1914. Walther von Lttwitzs Marinebrigade

Ehrhardt which was the force behind the coup withdrew from Berlin
(apparently leaving a bloody wake) and was nominally dissolved. Freikorps
militias however continued to be active in suppressing left-wing activities
both on behalf of the government and on their own initiative. Many former
Freikorps soldiers graduated to the Nazi SA, which, though officially formed in
1921, has its roots in the reform of the Freikorps.
To this outline of major trends in political violence between 1918 and 1921
when Benjamin wrote his Critique could be added snapshots of economic
insecurity resulting from blockade, unemployment and the beginnings of
hyper-inflation which threatened workers and the middle-classes equally. In
the absence or crisis of legitimate authority and in the face of opportunity
for some and poverty and hunger for many, non-political violence and
criminality flourished. This was reflected at the extremes in the popularity of
lurid cultural expressions or celebrations of violence often with sadistic and
sexualised overtones and in cases of true-life Sweeny Todds.
Arguably, the confusion Benjamin perceived in contemporary conceptions of
violence (whose ramifications threatened him personally) has its roots in
Romanticism. Resistance to Romanticism is the oblique polemical force of
Critique of Violence, for it is Romanticism which unites the failure of
revolutions with the cult of death in a repetitious cycle without even
dialectical hope. The Romantic revolutionarys dreams are fulfilled in
martyrdom while the cult of death demands sacrifice, not transformation. The
failure of revolution is required and celebrated by the cult of death whose
hunger for victims is attested by the empty tombs which punctuate the urban
landscape of Berlin today.

The sovereign has total control of the law, and decides


when to become the sovereign exception
Mills, author, 2008
Catherine, Catherine Mills is the author of many books, including Futures of
Reproduction: Bioethics and Biopolitics and Lured into Dawn, 2008. Online
book, page 61, Philosophy of Agamben. Acumen Publishing, database:
ProQuest ebrary.
The starting point for Agambens discussion of biopolitics in
Homo Sacer is the apparent paradox of sovereignty, wherein the
sovereign is simultaneously inside and outside the juridical order, a
situation encapsulated in the notion of the sovereign exception.
Taking up Carl Schmitts decisionistic thesis that the sovereign is he who
decides on the exception, 5 Agamben argues that what is at stake
in the state of exception is the very possibility of juridical rule and
the meaning of state authority. According to Schmitt, in deciding on
the state of exception a process in which the sovereign both
includes and excludes itself from the purview of law the sovereign
creates and guarantees the situation that the law needs for its own
validity (HS: 17). He argues that since the exception cannot be codified in
the established order, a true decision that does not rest on a pre-existent

norm or rule is required in order to determine whether it is an exception and,


thus, whether the rule applies to it. Sovereignty resides in this decision on
what constitutes public order and security, and, hence, whether the social
order has been disturbed. He claims that the exception is that which cannot
be subsumed; it defies general codification, but it simultaneously reveals a
specifically juristic element the decision in absolute purity . . . Therein
resides the essence of the states sovereignty, which must be juristically
defined . . . as the monopoly to decide. 6 Further, because the sense of the
legal order rests upon the existence of the normal situation, the form of the
sovereign decision is a decision on the norm and the exception. Thus
sovereignty is the border-line concept of order and the exception,
where the sovereign decides whether the situation that confronts it
is truly an exception or the normal order, such that sovereignty itself
becomes apparent in that decision.

Current law is in a legitimation crisis


Mills, author, 2008

Catherine, Catherine Mills is the author of many books, including Futures of


Reproduction: Bioethics and Biopolitics and Lured into Dawn, 2008. Online
book, pages 97-98, Philosophy of Agamben. Acumen Publishing, database:
ProQuest ebrary.
[[[Agamben concludes from this etymological discussion that this
indicates the insufficiency and opacity of every ethical doctrine that is
conceptually contaminated by the law (ibid.). But the missing set of premises
here is just what is wrong with the law, such that contamination by it renders
an ethical discourse obsolete or at least problematic. Here, Agamben is
presupposing the critique of law that he develops in Homo Sacer and
elsewhere. In this, he argues that law in the modern age has entered
into a legitimation crisis , summed up in the formula of being in force
without significance. Thus in Homo Sacer, he writes
All societies and all cultures today (it does not matter whether
they are democratic or totalitarian, conservative or progressive)
have entered into a legitimation crisis in which law (we mean by this
term the entire text of tradition in its regulative form, whether the
Jewish Torah or the Islamic Sharia, Christian dogma or the profane
nomos) is in force as the pure Nothing of Revelation. (HS: 51)
The justification for founding a non-juridical ethics lies in the
claim that all law understood as encompassing all normative or
regulative discourse is struck by the nihilistic crisis of being in
force without significance. The sweeping breadth of Agambens critique
evident in this statement has, unsurprisingly, drawn its detractors. Not only
does he equate all social and cultural forms, but additionally suggests that all
regulative discourse is struck by the same nihilistic crisis. It is difficult to see
how such a claim could be justified (at least beyond its becoming a
formalistic argument that then runs the risk of falling into exactly the same
trap as it diagnoses). ]]]

States of emergency destroy law


McLoughlin, Vice-Chancellor's Post-Doctoral Fellow, 2014

Daniel, Daniel is Vice-Chancellor's Post-Doctoral Fellow in the Faculty of Law


at the University of New South Wales. He holds a PhD in Philosophy from
UNSW and a Bachelor of Arts/Law from Macquarie University, 7/16/2014,
online book, Giorgio Agamben on Security, Government and the Crisis of
Law, page 680, Routledge Publishing
[[[Giorgio Agambens analysis of sovereignty and the state of
exception in the Homo Sacer project has been profoundly influential
as a way of theorising contemporary state violence. The second
volume of the project, State of Exception, delivers a caustic account of
contemporary constitutional democracy, arguing that the use of
emergency powers over the course of the twentieth century has
radically undermined the rule of law. According to Agamben, this
crisis of legality began in the period of political instability from
191445, and since that time has intensified to the point where the
state of exception has now reached its maximum worldwide
extension.1 While this history focuses on the internal politics of
ostensibly liberal democratic states, the closing pages of the work
also make it clear that Agamben believes that contemporary politics
is characterised by state violence that also ignores international law
externally.2]]]

NSA Link
The NSAs use of surveillance is killing politics the law is
continuously broken to save it.
Bauman 14 chair of sociology at the University of Leeds (Zygmunt;
Didier Bigo, Paulo Esteves, Elspeth Guild, Vivienne Jabri, David Lyon, B.J.
Walker; After Snowden: Rethinking the Impact of Surveillance; International
Political Sociology 8.2.121141; Wiley Online Library; 05/29/2014;
http://onlinelibrary.wiley.com/doi/10.1111/ips.12048/full)
As the Snowden news is so recent, there is little in-depth analysis of people's
views on government-led mass surveillance, let alone post-Snowden
ethnographies of how people now organize their daily lives in relation to
online data. Given this, we have to fall back on broader and longer-term
probes into attitudes. Snowden's work has disclosed evidence of the extent to
which the NSA and related agencies rely on Internet companies and social
media platforms such as Facebook for access to transactional and
interactional data. But for most social media users, surveillance as
hierarchical power seems to have little salience unless they live in conflict
zones or in countries with overt political repression. Much more likely, they
engage in social surveillance (Marwick 2012) where, in Foucault's capillaries
of power, the power differentials of everyday interactions are more
immediately significant than whatever the NSA and its cognate agencies are
doing. This is not to say that awareness won't rise, particularly in relation to
global events such as the-day-we-fight-back coordinated online resistance on
February 11, 2014.
The broader context of the Snowden revelations is not merely the decline of
political participation within liberal democratic states but also, as Agamben
has suggested, the breakdown of politics itself. Agamben insists that
under the sign of security today's states have shifted from politics to policing
and from governing to managingusing electronically enabled surveillance
systemsthus undermining the very possibility of politics (Agamben 2013).
That this occurs simultaneously alongside the growth of all kinds of
surveillance, not just those associated with communications and transactions,
augurs badly for the chances of a revived politics, especially when, at a
mundane level, cultures of surveillance seem so innocuous.

Surveillance Link
Fixations on security and current surveillance practices
jointly cause the state of exception.
Lyon 15 - director of the Surveillance Studies Centre (David; member of the
Royal Society of Canada, received Lifetime Achievement Award from the
American Sociological Association Communication and Information
Technology Section, a Killian Research Fellow; The Snowden Stakes:
Challenges for Understanding Surveillance Today; Surveillance & Society;
http://library.queensu.ca/ojs/index.php/surveillance-andsociety/article/view/snowden_stakes)
As mentioned earlier, security is becoming a key driver of surveillance,
not only at the national level but also in general types of policing,
urban security and in workplaces, transit systems and schools (Taylor
2013). This is of course, a key issue and one fraught with basic
problems of definition, which also relates to its status as a widelyused political rationale for a range of controversial measures. The
kind of national security that prompts increased surveillance
arguably has little in common with the kinds of securityfrom things
like famine, fear, even freedomthat many might think would benefit
their communities and families. Moreover, in practice, many current
attempts to procure national security seem to jeopardize the civil
liberties and human rights basic to democratic practice (see Zedner 2009). At
the same time, it must be acknowledged that not only security but also
some much more mundane motifs are significant in the development of
surveillance today. One is efficiency, that encourages the use of cost-cutting
policies and technology-intensive solutions and the other is convenience
that dominates much of the appeal of marketers to consumers. Under such
very ordinary and unremarkable motifs surveillance expands apace, as
evidence-producing technologies (as Josh Lauer calls them) are adopted for
reasons that are routine and everyday. Security, on the other hand, is still
supreme among these drivers. For philosopher Giorgio Agamben, the
security motif seen behind contemporary surveillance may be trumping not
only democracy but politics itself (Agamben 2013) and this insight may at
least serve as a theorem to be explored. At the same time, this trend must be
seen alongside another, the intertwiningand in some respects integration
of public and private agencies. The governmental and the corporate have
always worked closely together in modern times but the idea that they
inhabit essentially different spheres, with different mandates, is currently
unraveling. As Snowden revealed, telephone companies such as Verizon and
internet companies such as Microsoft work in tandem with state agencies
such as the NSA, in ways that have yet to be fully understood.

Historical examples in Germany show that placing limits


on surveillance only normalizes the state of exception
later on in the future.
Frohman 15 - Associate Professor of History and Director of Social Studies

Education at the State University of New York (Larry; B.A. in History/B.S.


Economics University of Pennsylvania; Datenschutz, the Defense of Law,
and the Debate over Precautionary Surveillance: The Reform of Police Law
and the Changing Parameters of State Action in Western Germany; Germany
Studies Review 38.2; May 2015; Project Muse;
http://muse.jhu.edu.proxy.lib.umich.edu/journals/german_studies_review/v038
/38.2.frohman.html)
NOTE: Rasterfahndung = dragnet
The reform of state police laws was an ongoing process, and there is no
clearly demarcated end to the developments set in motion by the census
decision.46 However, there was one event that might be considered to
mark the provisional culmination of the reform and informational
transformation of police law in the 1970s and 1980s. After
reunification, all of the new federal states in the former East
Germany, which had been chastened by their experience with the
countrys secret police, passed their [End Page 321] own privacy
protection (and freedom of information laws) and revised their police
laws based on West German models. In 1995 a group of legislators asked
Saxonys constitutional court to rule on the constitutionality of a number of
provisions of the states police law. The court expressed no reservations in
principle concerning the constitutionality of Rasterfahndung for
precautionary purposes. However, it ruled that in practice the
requirementwhich was set out in the state lawthat such matching
be necessary for preventing serious crime could only be satisfied if
in each instance there were factual indications that serious
offenses, for which the law authorized the use of the practice, were
being planned. Mere fears or presumptions on the part of the police, the
Court insisted, did not satisfy the criterion of proportionality.47 In this
way, the criterion of factual indications, in conjunction with more or less
precise definitions of what constituted a serious crime, came to define and
delimit, at least for a brief period, the extent to which the traditional liberal
principles of concrete dangers and well-grounded individual suspicion could
be attenuated to facilitate precautionary surveillance and the preventive
combatting of abstract risks. How well this criterion balanced between
individual privacy rights and the common interest in greater security through
effective crime prevention is a different question.
Despite the controversy that had raged around it in the 1980s,
Rasterfahndung fell into relative desuetude during the 1990s. However,
since 2001 it has reemerged as a favorite tool in the search against
presumed sleepers, and these attempts to use computer matching to
identify potential perpetrators within a population from which they
are not readily distinguished has called into question the provisional
compromise of the 1990s and raised new questions about the extent to which
the use of Rasterfahndung to combat abstract risks can be reconciled with
the rule of law.48

By the early 1990s, all of these debates had coalesced around the question of
whether the piecemeal codification of precautionary surveillance had led to a
paradigm shift that marked the end of classical police law.49 Such
criticisms focused on the erosion of procedural protections of
individual privacy rights in the name of more flexible and effective
prevention, the blurring or Entgrenzung of the institutional boundaries
that had been established to insure that police power did not again
degenerate into an instrument for totalitarian rule, and the
restructuring of the countrys security architecture.50 It is undeniable that
the central principles of liberal police law, which underlay the logic of state
limitation, have been eroded by the new precautionary surveillance
practices.51 Critics have argued that this partial institutionalization of the
precautionary principle in the security field entailed the normalization of the
state of exception, the unprecedented generalization of the paradigm of
security as the normal technique of government, and ultimately the
establishment of a postliberal form of social governance in which security
policy comes to colonize social policy and instrumentalize it for its own
ends.52 The surveillance state debate of the 1970s and 1980s drew its
energy and plausibility from an awareness of the ways in which [End Page
322] these developments were shifting the parameters of state action
and the fear that the expansion of police surveillance would be used
to repress legitimate social protest that could not be integrated
through democratic means.

Methods of surveillance in the squo only make our state


of exception more and more powerful.
McQuillan 15 Lecturer in Creative and Social Computing at Goldsmiths,
University of London (Dan; PhD in Experimental Particle Physics, Director of
E-communications for Amnesty International, co-founder of Social Innovation
Camp; Algorithmic States of Exception; European Journal of Cultural Studies
18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
[[Threat models and data models Edward Snowdens revelations (Electronic
Frontier Foundation, 2014) are shocking to many because they suggest that
the Internet has been set to spy on us. Rather than being platforms for the
free exchange of knowledge, the leaked documents show the Internet and the
web to be covered in surveillance machines that do not discriminate between
suspects and the general population. Yet, as disturbing as this picture might
be, it is at the same time a diversion. By pointing the finger at the National
Security Agency (NSA) and Government Communications Headquarters
(GCHQ), the revelations divert attention from the mechanisms of online
business. Tracking is at the heart of Silicon Valleys operations (Mozilla, 2014),
and online business-as-usual depends on ferreting out as much information
as possible about users; our actions are recorded, collated and sold as part of
the large-scale circulation of segmented advertising profiles. It is advertising
revenues that oil the wheels of Silicon Valley and the implicit social contract
is that service users will accept or ignore the gathering of their information in
return for wellengineered free services such as Gmail and Facebook. It is

important to realise that this is as expansive as the activities of PRISM,


Boundless Informant and other intelligence agency programmes. If we are
taken aback by reports that GCHQ developed code to extract user
information from the popular gaming app Angry Birds (Larson et al., 2014),
we should remember that the games companies themselves are already
collecting and sharing this information for marketing purposes. In this article,
I will consider the implications of this activity in terms of a threat and the way
this threat is connected to big data.
When security professionals discuss risk with non-governmental organisation
(NGO) activists or journalists who have a reasonable suspicion that they are
under surveillance, they will often talk in terms of defining a threat model. In
other words, rather than considering security as a blanket term, it is
important to consider what specific information should be secret, who might
want that information, what they might be able to do to get it and what might
happen if they do (Bradshaw, 2014). The emerging potential for
algorithmic states of exception outlined in this article suggests that the
business model and the threat model are becoming synonymous, by
giving rise to interactions that interfere with our assumptions about privacy
and liberty. In addition, the flow of everyday data that are being gathered by
these companies has surged into a permanent tsunami, whose landward
incursions have become known as big data. The diverse minutiae of our
digital interactions on the web and in the world (through smartphones, travel
passes, etc.) are aggregated into this new object of study and exploitation.
Industry tries to capture big data through definitions like volume, velocity
and variety (Gartner, 2011) so it can be positioned as both El Dorado
(McKinsey, 2011) and panacea (Hermanin and Atanasova, 2013), perhaps
unconsciously recapitulating alchemical notions of the Philosophers Gold.
Critics counter with questions about the ability of big datas numbers to
speak for themselves, their innate objectivity, their equivalence and whether
bigness introduces new problems of its own (boyd and Crawford, 2011). I will
suggest that the problems and the threats are not driven by big data as such,
any more than the drifting iceberg is the cause of the global warming that
unloosed it. Instead, we need to look at the nature of the materialpolitical
apparatus that connects data to decision-making and governance. ]]
The way society disciplines citizens through discourses of health, criminality,
madness and security (Foucault, 1977) is given categorical foundations in the
structures of data. Consider, for example, the category of troubled families
created by the Department for Communities and Local Government (2014) to
identify families as requiring specific forms of intervention from the agencies
in contact with them. The 40,000 or so families whose lives have been
turned around, by being assigned a single keyworker tasked with getting
them into work and their children back to school on a payment by results
model, would have been identified through some operations on the data
fields that make their existence legible to the government. In turn, various
agencies and processes would have operated on those individuals as both
effect and affect, as a created intensity of experiential state, in ways that
would construct the subjectivity of membership of a socalled troubled family.
These actions would, in turn, become new content for data fields and would
form the substrate for future interventions. Thus, the proliferation of data

does not simply hedge the privacy of enlightenment individuals but produces
new subjectivities and forms of action. The data that enable this activity are
produced by what Foucault called a dispositif:
A heterogeneous ensemble consisting of discourses, institutions, architectural
forms, regulatory decisions, laws, administrative measures, scientific
statements, philosophical, moral and philanthropic propositions. Such are the
elements of the apparatus. The apparatus itself is the system of relations that
can be established between these elements. (Foucault, 1980, quoted in
Ruppert, 2012)
This article argues that the apparatus is undergoing a significant shift in the
system of relations at several levels: in architectural forms (forms of database
structures), administrative measures (as algorithms), regulation (as
algorithmic regulation) and laws (as states of exception). The moral and
philosophical propositions will be considered at the end of the article where I
discuss potential means of resisting these shifts.
At the bottom layer of this stack of changes is the architecture of database
systems. For the last few decades, the Relational Database Management
System (RDBMS) has been a core part of any corporate or state apparatus.
The relational database transcribes between informational content and action
in the world. It stores data in flat tables of rows, each row containing the
same set of fields. Each table represents an entity in the world (e.g. a
person), and the fields are the attributes of that entity (which for a person
could be name, age, sexual orientation and so on). Each row in the table is an
instance of that entity in the world (so one table consists of many people),
and the relationships between tables model relationships in the world (e.g.
between the table of people and the table of families). Operations on the data
are expressed in Structured Query Language (SQL) which enables specific
questions to be asked in a computationally effective manner (Driscoll, 2012).
It is a powerful and efficient way to manage information at scale and up till
now has been well suited to the needs of organisations. However, it can be a
real challenge to restructure a relational database because new kinds of data
have come along or because there is too much data to store on a single
server. Under the pressure of social media and big data, new forms of
databases are emerging which drop the relational model and the use of SQL.
Commonly called NoSQL databases, their relative fluidity feeds into the social
consequences I am interested in understanding.
The structure of a relational database is an architecture of assumptions, built
on a fixed ontology of data and anticipating the queries that can be made
through its arrangement of entities and relationships. It encapsulates a moreor-less fixed perspective on the world and resists the re-inscription of the data
necessary to answer a completely new and unanticipated set of questions.
NoSQL dumps the neatly defined tables of relational databases in favour of
keeping everything in schema-less data storage (Couchbase, 2014). In
NoSQL, all the varied data you have about an entity at that moment is
wrapped up as a single document object it does not matter if it duplicates
information stored elsewhere, and the kinds of data stored can be changed as
you go along. Not only does it allow data to be spread across many servers, it
allows a more flexible approach to interrogating it. The data are not stored in
neatly boundaried boxes but can easily be examined at different
granularities; so, for example, rather than retrieving the profile photos of a

certain set of users, you can use an algorithm to search eye colour. These
dynamic systems can handle unstructured, messy and unpredictable data
and respond in real-time to new ways of acting on patterns in the data. Like a
shoal of startled fish, the application of this heterogeneous data can sharply
change direction at any moment. Throwing away the need to plan a database
structure beforehand or to think through the use and articulation of the data
leaves a free field for the projection of the imagination. In the next section, I
describe how this accelerates the established trend of data-mining and
prediction and feeds new ideas about possibilities for governance.
Algorithmic preemption
Data are transformed into propensities through algorithms, in particular
through forms of algorithmic processing known as data-mining and machine
learning. Data-mining looks for patterns in the data, such as associations
between variables and clusters, while machine learning enables computers to
get better at recognising these patterns in future data (Hastie, 2003). Hence,
there exists the possibility of making predictions based on inferences from
the data. In the pioneering days of data-mining, the interest was in the future
purchasing decisions of supermarket customers. But the potential for
empirical predictions is also attractive to social structures concerned with risk
management, whether those risks are related to car insurance or the
likelihood of a terrorist attack. For some, the massive rise in the means of
finding correlations is something to be celebrated, enabling decisions about
probable disease outbreaks or risks of building fires to be based on patterns
in the data (Mayer-Schonberger and Cukier, 2013). However, a probabilistic
algorithm will certainly result in some false positives, where it essentially
makes wrong guesses. Moreover, the reasoning behind the identification of
risk by an algorithm is an enfolded set of statistical patterns and may be
obscure to humans, even when all the data are accessible. As a result data
mining might point to individuals and events, indicating elevated risk, without
telling us why they were selected (Zarsky, 2002). Ironically, the predictive
turn introduces new risks because of the glossed-over difference between
correlation and causation. I show how this is amplified as decisions based on
correlations move into the social domain below.
The increasing use of prediction is colliding with our assumptions about
political and judicial fairness, through preemptive predictions forms of
prediction which are intentionally used to diminish a persons range of future
options (Kerr and Earle, 2013). A good illustration of preemptive prediction is
the no-fly list of people who are not allowed to board an aircraft in the United
States. The list is compiled and maintained by the US governments Terrorist
Screening Centre. People are usually unaware that they are on the list until
they try to board a plane, and face legal obfuscation when they try to
question the process by which they were placed on the list (Identity Project,
2013). The only way to tell if you have been taken off the list is to try to get
on a flight again and see what happens. The principle of fair and equal
treatment for all under the law relies on both privacy and due process, but
the alleged predictive powers of big-datamining are on course to clash with
the presumption of innocence. In Chicago, an algorithmic analysis predicted a
heat list of 420 individuals likely to be involved in a shooting, using risk
factors like previous arrests, drug offences, known associates and their arrest
records. They received personal warning visits from a police commander,

leading at least one person to worry that the attention would mis-identify him
to his neighbours as a snitch (Gorner, 2013). Defending themselves against
the charge that they were discriminating against the Black community, the
Chicago police officials referred back to the mathematical nature of the
analysis. Thus, preemptive measures are applied without judicial standards of
evidence and police are sometimes prepared to act on the basis of an
algorithm while asserting that they do not understand the reasoning process
it has carried out. While these cases may seem like outliers, the widespread
adoption of algorithmic regulation may embed the same process at the core
of regulatory action.
The concept of algorithmic regulation is being promoted as a mechanism of
social governance. One of the leading proponents is Tim OReilly, previously
credited as a spokesman for Web 2.0 and its strategy of basing online
services on user-generated data. OReilly and others use the term algorithmic
regulation to describe this computational approach to government. They
argue that the dynamic and statistical feedback loops used by corporations
like Google and Facebook to police their systems against malware and spam
can be used by government agencies to identify and modify social problems.
These processes are already at play in the private sector; if you agree to a
black box recorder in your car that tracks your driving behaviour, you will be
offered a hefty discount on your car insurance (Confused.com, 2014). For
policy makers, this promises a seamless upscaling of Thaler and Sunsteins
(2008) theory of the Nudge, where small changes to the so-called choice
architecture of everyday life alter peoples behaviour in a predictable and
desirable way. The resources available to governments have been thinned by
crisis-driven cuts and outsourcing, but big data bring a wealth of information.
The skills of commercial data-mining and machine learning are ready to
probe us for proclivities of which we may or may not be aware. Algorithmic
regulation seems to offer an apparatus with traction on obesity, public health
and energy use through real-time interventions. But, as we have seen, this is
made possible by a stack of social technologies with the tendency to escape
due process through preemption and justify actions based on correlation
rather than causation. How do we understand the implications of pervasive
yet opaque mechanisms where correlation becomes a basis for correction or
coercion? I argue that a useful lens is Giorgio Agambens ideas about the
state of exception.
States of exception
In his work on states of exception, Agamben (2005) examines the legal basis
of events such as a declaration of martial law or the introduction of
emergency powers, states of affairs where law, rights and political meaning
to life are suspended, of which an emblematic contemporary example is the
detention camp in Guantanamo Bay. Roman law allowed for the suspension of
the law in times of crisis through the idea that necessity has no law
(necessitas legem non habet). In modern times, the state of exception
emerged from the emergency measures of World War I and reached its
paramount manifestation in the Third Reich. Agamben interrogates the
juridical significance of a sphere of action that is itself extrajudicial to
understand the way it has been justified in a legal context and the broader
implications of that justification. Historically, the state of exception has been
brought within a juridical context by linking it with constituent power rather

than constituted power, in other words, linking it not with the existing legal
framework but with those forces that are the founding power of the
constitution. This ultimately leads Agamben to the conclusion that our
norms and rights are themselves rooted in the state of exception. We
are living in a kind of fiction, a really existing state of emergency, from which
we cannot return directly to the state of law for at issue now are the very
concepts of state and law. However, the application to the question of
algorithms comes to the fore through an intermediate part of Agambens
thesis, in the way that he identifies the topological structure of the state of
exception as being-outside and yet belonging and through his distinction
between the law and the force of the law. I suggest that being-outside and
yet belonging is the form of the spaces being created by the algorithmic
apparatus. While tied to clearly constituted organisational and technical
systems, the new operations have the potential to create social
consequences that are unaddressed in law. These experiences have been
prototyped in social media. When Facebooks algorithms decide that an
unlucky user has violated their Terms of Service, that person discovers he or
she has no recourse; there is no real explanation of why they were excluded,
and no one to whom he or she can appeal. No matter that they were
excluded simply for crossing some statistical confidence limit; or that their
long virtual labour in liking, friending and updating helped generate real
share value for the company; or that Facebook may have become an
important lever in their social life or in a political campaign (York, 2010). Their
prior agency and existence in this pseudopublic space has been
algorithmically suspended. Payday lending companies like Wonga now use
the full spectrum of heterogeneous data, including Facebook, to assemble
thousands of dynamic data points to make loan decisions (Deville, 2013).
Everyday life is becoming permeated by points of contact with algorithmic
systems that can influence the friction or direction of our experience. In the
1950s, redlining was used to describe the way people were charged more for
insurance and healthcare or denied services or jobs based on living in a
deprived (often racially identified) part of town. The potential with big data
and data-mining is a new and agile form of personal redlining (Davidow,
2014) that is dynamic and updated in real-time. Ambitious forms of
algorithmic regulation will combine with new forms of discrimination to apply
limits and exclusions. The effect will be to apply continuous partial
states of exception through algorithmically derived actions.
According to Agamben, the signature of a state of exception is force-of
actions that have the force of law even when not of the law. Software is being
used to predict which people on parole or probation are most likely to commit
murder or other crimes. The algorithms developed by university researchers
use a dataset of 60,000 crimes and some dozens of variables about the
individuals to help determine how much supervision the parolees should have
(Bland, 2010). While having discriminatory potential, this algorithm is being
invoked within a legal context. But the steep rise in the rate of drone attacks
during the Obama administration has been ascribed to the algorithmic
identification of risky subjects via the disposition matrix (Cobain, 2013).
According to interviews with US national security officials, the disposition
matrix contains the names of terrorism suspects arrayed against other
factors derived from data in a single, continually evolving database in which

biographies, locations, known associates and affiliated organizations are all


catalogued (Miller, 2012). Seen through the lens of states of exception, we
cannot assume that the impact of algorithmic force-of will be constrained
because we do not live in a dictatorship. Agambens point is that there exists
a confusion between dictatorship and the state of exception. The fascist
states of the 1930s were not dictatorships but dual states with second
structures that could exist alongside the constitution via the creation of
states of exception. What we need to be alert for, according to Agamben, is
not a confusion of legislative and executive powers but separation of law and
force of law. The contention of this article is that predictive algorithms
increasingly manifest as a force-of which cannot be restrained by invoking
privacy or data protection.

Legal regulation alone will NOT be able to solve the state


of exception.
McQuillan 15 Lecturer in Creative and Social Computing at Goldsmiths,
University of London (Dan; PhD in Experimental Particle Physics, Director of
E-communications for Amnesty International, co-founder of Social Innovation
Camp; Algorithmic States of Exception; European Journal of Cultural Studies
18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
Protections against the abuse of modern bureaucratic and corporate data
gathering have been established under the broad principle of a right to
privacy and specific regulations regarding data protection. Responses to the
risks posed by big data or algorithmic discrimination such as the Civil Rights
Principles for the Era of Big Data (The Leadership Conference, 2014) or the
Seven Principles for Big Data and Resilience Projects (Crawford and Meier,
2013) deploy these conventional ideas about rights. While this might be
useful as tactic, I am arguing that it is futile as a strategy, first, because
predictive algorithms obfuscate the act of inference. This makes it a priori
impossible to fulfil the basics of due process, those judgements about
likelihood and balance of proofs are made openly. But second, and more
fundamentally, the character of the state of exception erases the
possibility of legal regulation. While a state of exception is not a
dictatorship, it is a space devoid of law where legal determinations are
deactivated, especially that between public and private. If there is no longer
a public and private as far as the apparatus is concerned, resistance is going
to require much more than data protection. Below, I take a lead from
Agamben in looking for means of resistance to states of exception in the work
of Walter Benjamin. I follow this by describing manifestations of those ideas
in historical social movements and in contemporary forms of digital
resistance.

Democracy Impact
The inevitable utilization of the state of exception leads
to the liquidation of democracy
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 6-8
Tingstens analysis centers on an essential technical problem that profoundly marks the evolution of the modern parliamentary regimes: the
delegation contained in the full powers laws mentioned above, and the
resulting extension of the executives powers into the legislative sphere
through the issuance of decrees and measures. By full powers laws we mean those
laws by which an exceptionally broad regulatory power is granted to the
executive, particularly the power to modify or abrogate by decree the laws in force (Tingsten 1934,
13). Because laws of this na- ture, which should be issued to cope with exceptional circumstances of
necessity or emergency,

conflict with the fundamental hierarchy of law and


regulation in democratic constitutions and delegate to the execu- tive [governo]
a legislative power that should rest exclusively with par- liament, Tingsten seeks to examine the
situation that arose in a series of countries (France, Switzerland, Belgium, the United States, England, Italy,

the systematic expansion of execu- tive [governamentali]


powers during World War One, when a state of siege was declared or full
powers laws issued in many of the warring states (and even in neutral ones, like
Austria, and Germany) from

Switzerland). The book goes no further than recording a large number of case histories; nevertheless, in

although a temporary and controlled use


of full powers is theoretically compatible with demo- cratic constitutions, a
systematic and regular exercise of the institution necessarily leads to the
liquidation of democracy (333). In fact, the gradual erosion of the
legislative powers of parliamentwhich today is often limited to ratifying measures
that the executive issues through decrees having the force of law has
the conclusion the author seems to realize that

since then become a common prac- tice.

From this perspective, World War One (and

the years following it) appear as a laboratory for testing and honing the functional mechanisms and

One of the essential


characteristics of the state of exceptionthe provi- sional abolition of the distinction among
legislative, executive, and ju- dicial powershere shows its tendency to become a lasting
practice of government.: [T]here are no ultimate institutional safeguards
available for insur- ing that emergency powers be used for the purpose of
preserving the Constitution. Only the peoples own determination to see them so used can make
sure of that. . . . All in all the quasi-dictatorial provi- sions of modern constitutional
systems, be they martial rule, state of siege, or constitutional emergency
powers, fail to conform to any ex- acting standard of effective limitations
upon a temporary concentra- tion of powers. Consequently, all these systems
are liable to be trans- formed into totalitarian schemes if conditions
become favorable to it. (584)
apparatuses of the state of exception as a paradigm of government.

The democratic search for zoe is what is destroying it.


Agamben, philosopher, 1998 (Giorgio. Qualifications here.
Homo Sacer. Book. 4/1/98.)

If anything characterizes modern democracy as opposed to classical democracy, then, it is that

modern democracy presents itself from the beginning as a


vindication and liberation of zo, and that it is constantly trying to
transform its own bare life into a way of life and to find, so to speak, the bios of zo. Hence,
too, modern democracys specific aporia: it wants to put the freedom and
happiness of men into play in the very place bare life that marked their
subjection. Behind the long, strife-ridden process that leads to the
recognition of rights and formal liberties stands once again the body
of the sacred man with his double sovereign, his life that cannot be
sacrificed yet may, nevertheless, be killed. To become conscious of this aporia is
not to belittle the conquests and accomplishments of democracy. It is, rather, to try to understand once

democracy, at the very moment in which it seemed to have


finally triumphed over its adversaries and reached its greatest height,
proved itself incapable of saving zo, to whose happiness it had
dedicated all its efforts, from unprecedented ruin. Modern democracys
and for all why

decadence and gradual convergence with totalitarian states in post-democratic spectacular societies
(which begins to become evident with Alexis de Tocqueville and finds its final sanction in the analyses of
Guy Debord) may well be rooted in this aporia, which marks the beginning of modern democracy and

Today politics knows no value


(and, consequently, no nonvalue) other than life, and until the contradictions
that this fact implies are dissolved, Nazism and fascism which transformed the
decision on bare life into the supreme political principle will remain
stubbornly with us. According to the testimony of Robert Antelme, in fact, what the camps
forces it into complicity with its most implacable enemy.

taught those who lived there was precisely that calling into question the quality of man provokes an
almost biological assertion of belonging to the human race (Lespce humaine, p. II).
The idea of an inner solidarity between democracy and totalitarianism (which here we must, with every
caution, advance) is obviously not (like Leo Strausss thesis concerning the secret convergence of the final
goals of liberalism and communism) a historiographical claim, which would authorize the liquidation and
leveling of the enormous differences that characterize their history and their rivalry. Yet this idea must
nevertheless be strongly maintained on a historico-philosophical level, since it alone will allow us to orient
ourselves in relation to the new realities and unforeseen convergences of the end of the millennium. This
idea alone will make it possible to clear the way for the new politics, which remains largely to be invented.
In contrasting the beautiful day (euemeria) of simple life with the great difficulty of political bios in the
passage cited above, Aristotle may well have given the most beautiful formulation to the aporia that lies at
the foundation of Western politics. The 24 centuries that have since gone by have brought only provisional
and ineffective solutions. In carrying out the metaphysical task that has led it more and more to assume

Western politics has not succeeded in constructing


the link between zo and bios, between voice and language, that
would have healed the fracture. Bare life remains included in politics
in the form of the exception, that is, as something that is included
solely through an exclusion. How is it possible to politicize the natural sweetness of
the form of a biopolitics,

zo? And first of all, does zo really need to be politicized, or is politics not already contained in zo as its
most precious center? The biopolitics of both modern totalitarianism and the society of mass hedonism and

until a completely
new politics that is, a politics no longer founded on the exception of bare life is at hand,
every theory and every praxis will remain imprisoned and immobile,
and the beautiful day of life will be given citizenship only either
through blood and death or in the perfect senselessness to which
the society of the spectacle condemns it.
consumerism certainly constitute answers to these questions. Nevertheless,

Drones Impact
Weaponized drones allow for unique states of exception
that reduce targets to Homo Sacer.
Andersen 15 Student at the Roskilde University (Anders Hgh, Caroline
Elmquist-Clausen, Mikkel Steen Dahlgaard, Patrick Schack; Governing the
Future: Risk, Armed Drones, and State of Exception; RUDAR Archives;
03/5/15; http://rudar.ruc.dk/handle/1800/18849)
SUMMARY The armed drone illustrates a political tool applied in the War on
Terror as a State of Exception in terms of being a space without law. In
demonstrating a political will and decision to use the technology of armed
drones to monitor and kill with contiguity exemplifies the State of Exception
in specific geographies. In homogenizing the enemy of the state into spaces
of exception, the political violence of the armed drone implies going down a
rabbit hole a chaotic space of confusion outside the normal law. The space
and life surrounding the terrorist is politicized as bare life that is implicit in
the State of Exception. Thereby the rights of identified terrorists and the
space they inhabit is no longer part of the politico-juridical space of the U.S.
Arguably, there are two spaces of exceptions: one that is imagined and where
legitimacy is created and one that is geographical where violence is
perpetrated. The armed drone appears to connect the two spaces in both a
political and technological way.

Governmental Killing Machine


Impact
Utilizing the state of exception turns the government into
a killing machine
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 85-86

It is perhaps possible at this point to look back upon the path trav- eled thus far and draw some provisional

The juridical system of the West


appears as a double structure, formed by two heterogeneous yet coordinated
el- ements: one that is normative and juridical in the strict sense (which we can for
convenience inscribe under the rubric potestas) and one that is anomic and metajuridical
(which we can call by the name auctoritas ). The normative element needs the anomic
element in order to be ap- plied, but, on the other hand, auctoritas can assert
itself only in the val- idation or suspension of potestas . Because it results from
the dialectic between these two somewhat antagonistic yet functionally
connected elements, the ancient dwelling of law is fragile and, in straining to
main- tain its own order , is always already in the process of ruin and
conclusions from our investi- gation of the state of exception.

decay . The state of exception is the device that must ultimately articulate
and hold together the two aspects of the juridico-political machine by
instituting a threshold of undecidability between anomie and nomos, between life
and law, between auctoritas and potestas. It is founded on the essential fiction
according to which anomie (in the form of auctoritas, living law, or the force of law) is still
related to the juridical order and the power to suspend the norm has an
immediate hold on life. As long as the two el- ements remain correlated yet
conceptually, temporally, and subjectively distinct (as in republican Romes contrast
between the Senate and the people, or in medieval Europes contrast between spiritual and temporal

their dialecticthough founded on a fictioncan nevertheless function


in some way. But when they tend to coincide in a single per- son, when the
state of exception, in which they are bound and blurred together, becomes
the rule, then the juridico-political system transforms itself into a killing
powers)

machine.

Genocide Impact
Utilizing the state of exception gives rise to genocidal
dictatorships Nazi Germany proves
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 14-16
The history of Article 48 of the Weimar Constitution is so tightly woven into the
history of Germany between the wars that it is impossible to understand
Hitlers rise to power without first analyzing the uses and abuses of this
article in the years between 1919 and 1933. Its immediate precedent was Article 68 of
the Bismarckian Constitution, which, in cases where public security was
threat- ened in the territory of the Reich, granted the emperor the power to
declare a part of the Reich to be in a state of wa r (Kriegszustand), whose conditions and
limitations followed those set forth in the Prussian law of June 4, 1851, con- cerning the state of siege.

Amid the disorder and rioting that followed the end of the war, the deputies
of the National Assembly that was to vote on the new constitution (assisted by
jurists among whom the name of Hugo Preuss stands out ) included an article that granted
the president of the Reich extremely broad emergency [ eccezionali] powers. The
text of Article 48 reads, If security and public order are seriously [erheblich]
disturbed or threatened in the German Reich, the president of the Reich may
take the measures necessary to reestablish security and public order, with
the help of the armed forces if required. To this end he may wholly or partially
suspend the fundamental rights [Grundrechte] established in Articles 114, 115, 117, 118, 123,
124, and 153. The article added that a law would specify in detail the conditions and limitations under

Since that law was never passed, the


pres-idents emergency [eccezionali] powers remained so indeterminate that not
only did theorists regularly use the phrase presidential dictatorship in
reference to Article 48, but in 1925 Schmitt could write that no constitution
on earth had so easily legalized a coup dtat as did the Weimar Constitution
(Schmitt 1995, 25). Save for a relative pause between 1925 and 1929, the governments of the
Re- public, beginning with Brnings, made continual use of Article 48,
proclaiming a state of exception and issuing emergency decrees on more
than two hundred and fifty occasions; among other things, they employed
which this presidential power was to be exercised.

it to imprison thousands of communist militants and to set up


special tribunals authorized to pronounce capital sentences. On several
occasions, particularly in October 1923, the govern- ment had recourse to Article 48 to
cope with the fall of the mark, thus confirm- ing the modern tendency to
conflate politico-military and economic crises. It is well known that the last
years of the Weimar Republic passed entirely un- der a regime of the state of
exception; it is less obvious to note that Hitler could probably not have
taken power had the country not been under a regime of presidential dictatorship for nearly three years and had parliament been
function- ing. In July 1930, the Brning government was put in the minority, but Brning did not

resign. Instead, President Hindenburg granted him recourse to Article 48 and dissolved the Reichstag. From

Germany in fact ceased to be a parliamentary republic .


Parliament met only seven times for no longer than twelve months in all,
that moment on,

while a fluctuating coalition of Social Democrats and centrists stood by and


watched a government that by then answered only to the president of the
Reich. In 1932, Hindenburgreelected president over Hitler and Thlmannforced Brning to resign and
named the centrist von Papen to his post. On June 4, the Reichstag was dissolved and never reconvened

a state of exception was proclaimed in the


Prussian territory, and von Papen was named Reich Commissioner for Prussia
ousting Otto Brauns Social Democratic government. The state of
exception in which Germany found itself during the Hindenburg presidency
was justified by Schmitt on a constitutional level by the idea that the
president acted as the guardian of the constitution (Schmitt 1931); but the end of
the Weimar Republic clearly demonstrates that, on the contrary, a
until the advent of Nazism. On July 20,

protected democracy is not a democracy at all, and that the


paradigm of constitutional dictatorship functions instead as a
transitional phase that leads inevitably to the establishment of a
totalitarian regime .

Given these precedents, it is understandable that the constitution of the

the grand
coalition of Christian Democrats and Social Democrats passed a law for the
amendment of the constitution (Gesetz zur Ergnzung des Grundge- setzes) that
reintroduced the state of exception (defined as the state of internal necessity, innere
Notstand). However, with an unintended irony, for the first time in the history of
the institution, the proclamation of the state of exception was provided for
not simply to safeguard public order and security , but to de- fend the
Fed- eral Republic did not mention the state of exception. Nevertheless, on June 24, 1968,

liberal-democratic constitution. By this point, protected democracy


had become the rule.

A state of exception allows legal genocide of adversaries


Agamben, 2003

Giorgio, 2003, GIORGIO AGAMBEN - STATE OF EXCEPTION, The European


Graduate School, http://www.egs.edu/faculty/giorgio-agamben/articles/stateof-exception/
[[[[In his Political Theology, Carl Schmitt established the essential
proximity between the state of exception and sovereignty. But
although his famous definition of the sovereign as "the one who can proclaim
a state of exception" has been commented on many times, we still lack a
genuine theory of the state of exception within public law. For legal theorists
as well as legal historians it seems as if the problem would be more of a
factual question than an authentic legal question.
The very definition of the term is complex, since it is situated at the limit of
law and of politics. According to a widespread conception, the state of
exception would be situated at an "ambiguous and uncertain fringe at the
intersection of the legal and the political," and would constitute a "point of
disequilibrium between public law and political fact." The task of defining its
limits is nevertheless nothing less than urgent. And, indeed, if the exceptional
measures that characterize the state of exception are the result of periods of
political crisis, and if they for this very reason must be understood through
the terrain of politics rather than through the legal or constitutional terrain,

they find themselves in the paradoxical position of legal measures that


cannot be understood from a legal point of view, and the state of exception
presents itself as the legal form of that which can have no legal form.
And, furthermore, if the sovereign exception is the original set-up
through which law relates to life in order to include it in the very
same gesture that suspends its own exercise, then a theory of the
state of exception would be the preliminary condition for an
understanding of the bond between the living being and law. To lift
the veil that covers this uncertain terrain between, on the one hand, public
law and political fact, and on the other, legal order and life, is to grasp the
significance of this difference, or presumed difference, between the political
and the legal; and between law and life. Among the elements that render a
definition of the state of exception thorny, we find the relationship it has to
civil war, insurrection and the right to resist. And, in fact, since civil war is the
opposite of the normal state, it tends to coalesce with the state of exception,
which becomes the immediate response of the State when faced with the
gravest kind of internal conflict. In this way, the 20th century has produced a
paradoxical phenomenon defined as "legal civil war."
Let us look at the case of Nazi Germany. Just after Hitler came to power
(or, to be more precise, just after he was offered power) he proclaimed, on
February 28, 1933, the Decree for the Protection of the People and the
State. This decree suspends all the articles in the Weimar
Constitution maintaining individual liberties. Since this decree was
never revoked, we can say that the entire Third Reich from a legal
point of view was a twelve year-long state of exception. And in this
sense we can define modern totalitarianism as the institution, by
way of a state of exception, of a legal civil war that permits the
elimination not only of political adversaries, but whole categories of
the population that resist being integrated into the political system .
Thus the intentional creation of a permanent state of exception has
become one of the most important measures of contemporary
States, democracies included. And furthermore, it is not necessary
that a state of exception be declared in the technical sense of the
term.]]]

Hegemony Impact
States of emergency destroy US credibility and
undermines hegemony, this turns the case
Bigo, professor, 2006
Didier, professor at Kings College London, 2006, Theorizing surveillance:
The panopticon and beyond, Willan Publishing, Cullompton, Academia.edu,
https://www.academia.edu/3102812/Security_exception_ban_and_surveillance
Critical security studies and surveillance studies have a lot in common, but
they rarely interact with one another. Surveillance studies is now a specific
field of research in sociology that has been initiated by sociologists such as
Gary Marx and David Lyon, which has expanded far beyond its original focus
concerning activities of surveillance and control of minorities by police and
intelligence services.1 Surveillance technologies, as well as attitudes towards
constant monitoring of activities, have shifted and greatly expanded to
become routines of everyday life, rather than exceptional practices. The idea
of an Orwellian society in the making, through a liberal agenda, has been
much discussed. Michel Foucault uses the term panopticon to describe both
the development of the Orwellian society and its transformation, as it moves
from a society of discipline to a society of management and monitoring the
life of populations encapsulated in a territorial container controlled by the
state. Critical criminology has engaged in discussion about the accuracy of
using Michel Foucaults dispositif2 notion of the panopticon, which some
authors view as too government-focused, to Deleuzes notion of the
assemblage (Haggerty and Ericson 2000). Kevin Haggerty and Richard
Ericson have developed the approach of the assemblage, and I have
discussed the limits of the Foucaldian notion of the pan-opticon in an earlier
piece by proposing the notion of the ban-opticon (Bigo 2005).
The notion of ban originates from international relations (IR) and critical
security studies and is on a parallel track with surveillance studies. The banopticon deconstructs some of the post-September 11 analysis as a
permanent state of emergency or as a generalized state of
exception,3 which reinstates the question of who decides about the
exception in the heart of the IR debate: who is sovereign, and who can
legitimately name the public enemy. The ban-opticon dispositif is
established in relation to a state of unease created by the United
States and its allies. The United States has propagated the idea that
there is a global in-security, which is attributed to the development
of threats of mass destruction, thought to be derived from terrorist
and other criminal organizations and governments that support
them. This has led the US to assert the need for a globalized security
that would render national borders obsolete and pressure other
international actors to collaborate. These developments have
created the field of unease management, which is the formation of
global police networks, policing military functions of combat and
criminalizing the notion of war. The governmentality of unease is
characterized by practices of exceptionalism, acts of profiling and containing
foreigners, and a normative imperative of mobility (Bigo 2005).

The ban attempts to show how the role of routines and acceptance of
everyday life protects some over others, or how the protection of these
others against themselves as the profound structure which explains the
moment of the declaration of exception.4 It also attempts to reveal the
judicial illusion that a specific moment declares the sovereign borders of the
political, which is so favoured in many analyses. This view needs to be
amended by a sociological stance that takes into account long-term social
processes and public acceptance of the routines of surveillance.

Its been less than a week since former National Security Agency systems
administrator Edward Snowden, through the reporting of The Guardian and
The Washington Post, lifted the curtain on the United States governments
vast surveillance apparatus. Snowden, who shed light on how the NSA
monitors the cell phone activity, credit card data, and Internet browsings of
millions of Americans, is responsible for one of the biggest national security
leaks in U.S. political history. And the American people dont really seem to
care.
More than half (56 percent) of the 1,004 adult respondents to a national
survey conducted June 6-9 by the Pew Research Center and The Washington
Post said that the NSA program tracking telephone records is an acceptable
way for the government to investigate terrorism. Forty-one percent felt the
practice was unacceptable.
The American public is somewhat more divided on the NSAs Internet
monitoring programs, with 45 percent of respondents agreeing that the
government should be able to monitor everyones email and other online
activities if officials say this might prevent future terrorist attacks and 52
percent disagreeing. Despite the Prism revelations, this isnt a drastic shift
from how Americans felt back in July 2002, when a Pew survey found that 45
percent of Americans were OK with the government monitoring Internet
activity in order to prevent future attacks (47 percent said it should not).
Pews researchers conclude from the latest survey that there are no
indications that last weeks revelations of the governments collection of
phone records and Internet data have altered fundamental public views about
the tradeoff between investigating possible terrorism and protecting personal
privacy.

Surveillance is deemed fine right after an attack, this


means a future attack will justify more surveillance
breaches, bringing America into a State of Exception, also
turns the case
Keller, journalist, 2013
Jared, Jared Keller is a journalist living in Brooklyn, NY. His work has appeared
in the Atlantic, Bloomberg Businessweek, Al Jazeera America, the Los Angeles
Review of Books, and the Verge, 6/12/13, Why Dont Americans Seem to

Care About Government Surveillance?, Pacific Standard,


http://www.psmag.com/politics-and-law/why-dont-americans-care-aboutgovernment-surveillance-60011
[[[In a poll conducted shortly after the manhunt for the Boston
Marathon bombing suspects, 78 percent of respondents agreed with
the increased used of surveillance cameras in public places.
Despite days of headlines about the American surveillance state and
government invasions of privacy (and a huge spike in sales of George
Orwells 1984 on Amazon), Americans seem to have accepted the scope and
reach of the post-9/11 surveillance state into their lives as necessary.
Pew notes that 62 percent of Americans believe the federal
government should investigate possible terrorist threats, even if
that means intruding on personal privacy, while just 34 percent say
it is more important for the government not to intrude on personal
privacy, even if that limits its ability to investigate possible terrorist
threats.
Why are Americans so comfortable with the surveillance state? Its
likely that this acceptance goes hand-in-hand with an acceptance of
the reality of modern terrorism.
In a New York Times/CBS poll conducted shortly after the manhunt
for Boston Marathon bombing suspects Tamerlan and Dzhokhar
Tsarnaev, 78 percent of respondents agreed with the increased used
of surveillance cameras in public places, judging the infringement
on their privacy as an acceptable trade-off for greater security from
terrorist attacks, as the Times put it. Of those respondents, 24
percent said a terrorist attack on the United States was very likely
in the next few months and 42 percent somewhat likely. (In the
previous year, just 10 percent of people had said another attack in
the U.S. in the next few months was very likely.)]]]
The threat of terror in our cities, immediately after 9/11, was paralyzing. Now,
despite the horror of the bombings in Boston and the attacks that have been
thwarted by counterterrorism efforts in the years since 9/11 (like Najibullah
Zazis 2009 plot to detonate explosives on the New York subway), terrorism
seems to have become more accepted as a modern geopolitical
phenomenon, a fixture in the background of our daily lives.
Concern about another terrorist episode in the United States has increased
after the events in Boston, wrote Micah Cohen at FiveThirtyEight shortly
after the manhunt for the two suspects concluded. But there has not been
the upsurge in concern over such an attack that there was in the aftermath of
September 11, 2001, in New York City. The post-Boston polls have also shown
that Americans personal sense of threatas opposed to the generalized
threat that the country facesremains low.

How, exactly, does one get used to the threat of terror? Have Americans
become so habituated to domestic dangers (as opposed to, say, the faraway
theater of conventional war) that weve come to accept the continued
presence of the modern surveillance state, even when a someone like Edward
Snowden provides a glimpse as to how it intrudes on our everyday lives?
Its certainly possible. While terrorism is designed to demoralize and, well,
terrorize a target population, groups with regular exposure to ongoing
violence can develop a high tolerance for disruptions to civil society.
Some of the best research into this matter focuses on the psychological
impact of terrorism on Israelis following the outbreak of the Second Intifada in
September 2000. In a 2003 article in The Journal of the American Medical
Association, researchers Avraham Bleich, Marc Gelkopf, and Zahava Solomon
set out to determine the relationship between terrorist attacks and the
prevalence of traumatic stress-related symptoms and the public sense of
safety in Israel. They discovered a moderate level of stress immediately
following the outbreak of violence around Jerusalem from 2000 to 2002;
survey participants showed distress and lowered sense of safety, they did
not develop high levels of psychiatric distress, which may be related to a
habituation process and to coping mechanisms, according to the
researchers. This resonates with the reaction of U.S. citizens immediately
following 9/11. A national survey conducted just days after the attacks found
that 44 percent of the adults reported substantial stress symptoms.
But over time, the trauma caused by the Intifada became somewhat
normalized throughout the Israeli population. New York Universitys Ariel Y.
Shalev found in 2006 that PTSD levels eventually stabilized in various
neighborhoods throughout Jerusalem, regardless of whether theyd been
directly affected by terrorism or not.
A 2010 study in Economica on Israels experience with terror by Cornell
Universitys Asaf Zussman (and co-authored with Bank of Israel researcher
Noam Zussman and Dmitri Romanov of the Israel Central Bureau of Statistics)
examined happiness and psychological health among Israeli citizens from
2002 to 2004, the years immediately following those examined by Bleich et
al. In their econometric analysis of happiness among Israelis four years after
the start of the Intifada, Zussman and her colleagues found that terrorist
attacks had practically no effect on happiness levels. Zussman is careful to
note that this isnt a blanket habituation phenomenon for Israels entire
populaceArab Israelis experience a more negative reaction to terror attacks
than Jewish Israelisbut that the general tolerance for terrorism in the nation
remained high as the years passed from the initial outbreak of violence.
Overall, the level of happiness remained stable throughout the Intifada years
despite a large variation in the intensity of terrorism across time and
location, writes Zussman. The evidence thus casts a doubt on the
effectiveness of terrorism in achieving one of its main objectives
demoralizing enemy population.

But even if terrorism seems uncontrollable to the average citizen, why arent
more concerned with the level of surveillance undertaken by a state they,
theoretically, have some legal and political power in? Not only are programs
like Prism classified as top secret and their mention outlawed by the FISA
courts that authorize their usage, but the very architecture of surveillance is
designed to be unseen and unobtrusive. We only get riled up about violations
of our constitutional rights when theyre obvious, and immediate, like the
genital scrutiny of the Transportation Safety Administration. By contrast,
terrorism, despite its infrequency, is a still a highly visible and deeply
personal experience for Americans. Conor Friedersdorf draws out this
distinction with regards to September 11:
Most Americans don't just remember where they were on September 11,
2001they remember feeling frightened. Along with anger, that's one
emotion I felt, despite watching the attacks from a different continent. That
week, you couldn't have paid me to get on a plane to New York or
Washington, D.C. Even today, I'm aware that terrorists target exactly the
sorts of places that I frequent. I fly a lot, sometimes out of LAX. I've ridden
the subway systems in London and Madrid. I visit Washington and New York
several times a year. I live in Greater Los Angeles.
... As individuals, Americans are generally good at denying al Qaeda the
pleasure of terrorizing us into submission. Our cities are bustling; our
subways are packed every rush hour; there doesn't seem to be an empty seat
on any flight I'm ever on. But as a collective, irrational cowardice is getting
the better of our polity. Terrorism isn't something we're ceding liberty to fight
because the threat is especially dire compared to other dangers of the
modern world. All sorts of things kill us in far greater numbers. Rather, like
airplane crashes and shark attacks, acts of terror are scarier than most
causes of death. The seeming contradictions in how we treat different threats
suggest that we aren't trading civil liberties for security, but a sense of
security. We aren't empowering the national-security state so that we're
safer, but so we feel safer.
The national emergency state from which programs like Prism have
originated has outlived the national emergency. A strong executive isnt
necessarily alien in the American constitutional system in the event of an
emergency. The Prize Cases established that one of the core obligations of
that branch is to meet any exigency in the shape it presented itself, without
waiting for Congress to baptize it with a name, and subsequent Supreme
Court casesIm thinking Ex parte Milligan, Schenck v. U.S. (which
established the clear and present danger prerequisite for executive action),
and Brandenburg v. Ohio, in particularhave continued to define and
circumscribe the juridical spaces where the executive branch of the
government can act unilaterally to deal with a crisis.

PRISM/NSA Impact
PRISM and other NSA programs take away our 4th
amendment to stop the war on terror; this creates a state
of exception.
Kaminski, the executive director of the Information Society Project at Yale
Law School. 2013. (Margot, She is a graduate of Harvard University and Yale
Law School and a former fellow of the Information Society Project. While at
Yale Law School, she was a Knight Law and Media Scholar and co-founder of
the Media Freedom and Information Access Practicum. Following graduation
from Yale Law School, she clerked for The Honorable Andrew J. Kleinfeld of the
Ninth Circuit Court of Appeals. She has been a Radcliffe Research Fellow at
Harvard and a Google Policy Fellow at the Electronic Frontier Foundation. Her
research and advocacy work focuses on media freedom, online civil liberties,
data mining, and surveillance issues. She has written widely on law and
technology issues for law journals and the popular press and has drawn
public attention to the civil liberties issues surrounding the AntiCounterfeiting Trade Agreement. PRISM's Legal Basis: How We Got Here, and
What We Can Do to Get Back. The Atlantic.
http://www.theatlantic.com/national/archive/2013/06/prisms-legal-basis-how-we-gothere-and-what-we-can-do-to-get-back/276667/)
In the past two days, the press has provided unprecedented revelations of
how pervasive the secret surveillance state has become. Leaks reveal that
the FBI and NSA have received all Verizon Business Services telephone call
records , including geolocation data; and the NSA uses a program called
PRISM to access user content held by Google, Facebook, Microsoft, and Apple.
How can a country that constitutionally protects privacy permit its
government to spy on such a scale? The Fourth Amendment prevents
dragnet surveillance by requiring law enforcement to go to courts
and show probable cause. These dual requirements of court
oversight and a legitimate, targeted investigation ensure that
people will not be subject to general searches by an abusive
government. But intelligence-gathering that involves "the activities
of foreign powers" is treated differently, whether it occurs inside or
outside of the United States. Foreign intelligence is the exception
that has swallowed the Fourth Amendment whole. As my colleague
Anjali Dalal points out, people probably believe that foreign
intelligence law is " supposed to be going after foreign
intelligence ," but its impact on Americans is surprisingly broad. In
1978, Congress set up a system governing foreign intelligence surveillance.
The surveillance programs leaked in the past two days are the results of the
post-9/11 version of this system. The Verizon call records, which include
phone numbers, location data, and timestamps, were authorized as the
collection of "business records" under the PATRIOT Act. And the PRISM
program--which allows the NSA to access content such as emails,
search histories, and audio chats-- is authorized as part of "foreign

intelligence" gathering under the 2008 Amendments to the Foreign


Intelligence Surveillance Act (FISA). If the revelations of the past two
days have taught us anything, it is that revision of our foreign intelligence
surveillance system is a constitutional necessity. It is crucial to understand
that the foreign intelligence system as it currently exists fails to require both
adequate targeting and adequate oversight. The system allows
intelligence agencies to gather an enormous amount of information
"incidental" to any investigations . And it does so with minimal court
and Congressional oversight . If the revelations of the past two days have
taught us anything, it is that revision of our foreign intelligence surveillance
system is a constitutional necessity. If the Fourth Amendment is to have
any meaning, Congress must untangle the current web of broad
authorizations and broad secrecy that allows the government to
escape judicial accountability for its acts. First, there is the question of
whom the surveillance targets. PRISM spies on Americans. The Director of
National Intelligence emphasized yesterday that PRISM targets only " nonU.S. persons located outside the United States ." But the press release also
acknowledges that "information about U.S. persons" may be "incidentally
acquired" in such pursuits. Targeting is not the same as collecting; the
program may "target" foreign persons, but "acquire" information on
Americans. The current scope of this "incidental" surveillance will shock most
Americans. Before 2008, the law limited "incidental" surveillance by limiting
primary surveillance. The government had to show probable cause that its
surveillance target was the agent of a foreign power, and that the facility
being watched was about to be used by that target. You could be incidentally
observed if you communicated with a targeted foreign agent, but otherwise
foreign communications were likely to be unmonitored. But in 2008, the FISA
Amendments Act (FISAAA) changed this. The government now does not
need to show probable cause that the target is a foreign agent. It
need only have a "reasonable belief" that the target is located
outside of the United States. The new version of FISA does not
require the government to identify its targets; it does not require
the government to identify the monitored facilities; and the purpose
of foreign intelligence gathering attaches to the whole surveillance
program, not the individual investigation. That is to say: the FISA
Amendments Act permits the government to obtain a single court
order through which it can monitor thousands, or even millions, of
people. The scope of "incidental" surveillance thus vastly expanded
as Congress lowered the requirements for spying on the primary
target. Such a system will inevitably sweep in untold numbers of Americans
who communicate with foreigners. And because the government need have
only a "reasonable belief" that the target is outside the United States--which
it is interpreting according to the Washington Post as a 51% chance that the
target is outside the U.S.--this system will undoubtedly sweep in purely
domestic communications as well. This brings us to the issue of oversight:
who is watching the watchers? The Director of National Intelligence assures
us that PRISM is "subject to oversight by the Foreign Intelligence Surveillance
Court, the Executive Branch, and Congress." It is true that in December 2012
Congress renewed the law that allows PRISM to exist. But what kind of

oversight did Congress actually provide? When Senators Ron Wyden and
Mark Udall asked whether communications by Americans had been gathered
under the law, the Director of National Intelligence responded that it was not
possible to identify the number of people in the United States whose
communications were reviewed. How effective can Congressional oversight
be if Congress does not understand the scope and nature of the programs it
has authorized? At the core of the problem is that the Foreign Intelligence
Surveillance Court (FISA Court), which meets in secret and does not publish
its opinions, itself does not provide adequate oversight. When Congress
changed the standard for targeting foreign individuals in 2008 , it
abolished the ability of the FISA Court to evaluate whether the
government had any real cause to target an individual or group of
individuals. The Supreme Court itself disputes whether the FISA Court
enforces the Fourth Amendment. The "minimization procedures" touted by
the Director of National Intelligence as adequate privacy safeguards are
established by the government, evaluated by the government, and are
subject to review by a secret court--if review occurs at all. And as a general
practice, FISA "minimization" hasnot been true minimization: it occurs after
information is already acquired. The existence of PRISM and the Verizon
metadata program, both authorized by the FISA Court, confirms that a secret
court broadly authorized by an uninformed Congress will not adequately
protect the Fourth and First Amendment rights of American citizens
on American soil. So what can we do? The first instinct might be to look to
federal courts to protect our constitutional rights. But in February of this year,
the Supreme Court effectively closed that avenue of recourse at least with
respect to PRISM in Clapper v. Amnesty International. The majority of the
Court found that the group of lawyers, journalists, and human rights
advocates who challenged the constitutionality of the law that authorizes
PRISM could not show that they had been injured by it. The Court explained
that the alleged surveillance was too speculative; the group could not get into
court unless it showed that surveillance of its members was "certainly
impending." One might think that a new lawsuit could show that surveillance
is "certainly impending," because we now know that the PRISM program
exists. But this is not clear. Any plaintiffs would probably still face the
significant hurdle of showing that the government has spied on them in
particular, or their foreign correspondents. And while the existence of a
similarly pervasive spying program led the Ninth Circuit to find that a similar
lawsuit could proceed, that case came down before the recent Supreme Court
opinion. The best solution, then, is Congress. Congress must repeal the FISA
Amendments Act, which it regrettably reauthorized in 2012. Otherwise the
revelation that the government can and does spy on Americans through
Internet companies will chill expression, chill free association, and threaten
our society's growing reliance on cloud computing for everything from
intimate communications to business transactions. And Congress should
reevaluate the secrecy surrounding our entire foreign intelligence-gathering
system, because if the past two days have shown anything, it is that lack of
oversight leads to extraordinary abuses.

The NSA is not a question of privacy, but a question of


power between political life and bare life.
Rosen, a senior editor at The Atlantic, 2013, (Rebecca, Why Should We Even

Care If the Government Is Collecting Our Data? The Atlantic,


http://www.theatlantic.com/technology/archive/2013/06/why-should-we-evencare-if-the-government-is-collecting-our-data/276732/)
As people have tried to make sense of the recent revelations about the
government's mass data-collection efforts, one classic text is experiencing a
spike in popularity: George Orwell's 1984 has seen a 7,000 percent increase
in sales over the last 24 hours.*
But wait! This is the wrong piece of literature for understanding the NSA's
programs, argues legal scholar Daniel J. Solove. In his book, The Digital
Person, Solove writes that the troubles with the collection of massive
amounts of personal data in databases are distinct from those of government
surveillance, the latter being the focus of 1984. He summed up his argument
in a later paper (emphasis added): Many commentators had been using the
metaphor of George Orwell's 1984 to describe the problems created by the
collection and use of personal data. I contended that the Orwell metaphor,
which focuses on the harms of surveillance (such as inhibition and social
control) might be apt to describe law enforcement's monitoring of citizens.
But much of the data gathered in computer databases is not particularly
sensitive, such as one's race, birth date, gender, address, or marital status.
Many people do not care about concealing the hotels they stay at, the cars
they own or rent, or the kind of beverages they drink. People often do not
take many steps to keep such information secret. Frequently, though not
always, people's activities would not be inhibited if others knew this
information. I suggested a different metaphor to capture the problems: Franz
Kafka's The Trial, which depicts a bureaucracy with inscrutable
purposes that uses people's information to make important
decisions about them, yet denies the people the ability to
participate in how their information is used. The problems captured by
the Kafka metaphor are of a different sort than the problems caused by
surveillance. They often do not result in inhibition or chilling. Instead, they are
problems of information processing--the storage, use, or analysis of data-rather than information collection. They affect the power relationships
between people and the institutions of the modern state. They not
only frustrate the individual by creating a sense of helplessness and
powerlessness, but they also affect social structure by altering the
kind of relationships people have with the institutions that make
important decisions about their lives. This reframing that Solove
proposes is important not as a matter of literary criticism but because it more
precisely pinpoints the problems the NSA programs could create. Politically,
the traditional explanations -- that this is a violation of our privacy -- don't
seem convincing to many people. According to a new Pew poll, 56 percent of
Americans approve of the NSA's phone-data collection and 45 percent of
email monitoring. Sixty-two percent say it is more important to investigate
terror threats than it is to avoid privacy intrusions. The most convincing
reasoning for the majority's position is, in Solove's view, "formidable." He
writes, "The NSA surveillance, data mining, or other government information
gathering programs will result in the disclosure of particular pieces of

information to a few government officials, or perhaps only to government


computers. This very limited disclosure of the particular information involved
is not likely to be threatening to the privacy of law-abiding citizens." In other
words, for many Americans, digital data collection, analyzed by
algorithm, does not amount to a serious invasion of their privacy. In
this calculation, the amount of privacy traded away is small, and the
potential security gains great. This is a trade many Americans are
willing to make, and not irrationally. So, why then are the NSA's
programs troubling? It's not so much in the collection of the data per se (the
surveillance part) but the holding and processing of that data in perpetuity.
As Solove writes (emphasis added): The NSA program involves a massive
database of information that individuals cannot access. Indeed, the
very existence of the program was kept secret for years. This kind of
information processing, which forbids people's knowledge or
involvement, resembles in some ways a kind of due process
problem . It is a structural problem involving the way people are
treated by government institutions. Moreover, it creates a power
imbalance between individuals and the government . To what extent
should the Executive Branch and an agency such as the NSA, which
is relatively insulated from the political process and public
accountability, have a significant power over citizens? This issue is
not about whether the information gathered is something people
want to hide, but rather about the power and the structure of
government. Privacy is hard to define and even harder to defend. The legal
scholar Arthur Miller called it "exasperatingly vague and evanescent." Samuel
Warren and Louis Brandeis famously described it as the "right to be let alone"
(something that the NSA's programs can only very indirectly be characterized
as violating, since they operate without interfering with us pretty much at
all). In Solove's formulation, we should ease off the privacy handwringing and turn our attention to something much more
fundamental: how we relate as citizens to our government and how
much power we have in that relationship.

Rights Impact
Mass surveillance invokes the state of exception, since
basic human rights are disregarded in favor of security.
Lyon 14 - director of the Surveillance Studies Centre (David; member of the
Royal Society of Canada, received Lifetime Achievement Award from the
American Sociological Association Communication and Information
Technology Section, a Killian Research Fellow; Surveillance, Snowden, and
Big Data: Capacities, consequences, critique; Big Data & Society: Big Data &
Society On behalf of 2014 1; ResearchGate; January 2014;
http://www.researchgate.net/profile/David_Lyon10/publication/265965268_Big
_Data__Society_Big_Data__Society_On_behalf_of/links/5421d9e60cf238c6ea6
78102.pdf)
The main question addressed in this article is in two parts: One, in what ways
and to what extent do the Snowden disclosures indicate that Big Data
practices are becoming increasingly important to surveillance? The answer,
clearly, is yes, they are. Many of the major Snowden revelations, especially
those in which metadata feature prominently, indicate a reliance upon Big
Data practices. The second question, following on from the first, is how far
does this indicate changes in the politics and practices of surveillance? Are
new trends, or the augmentation of older ones, visible here? Again, the
evidence discussed here suggests strongly that Big Data practices are
skewing surveillance even more towards a reliance on technological
solutions, and that this both privileges organizations, large and small,
whether public or private, reinforces the shift in emphasis towards control
rather than discipline and relies increasingly on predictive analytics to
anticipate and preempt.
These questions were explored in respect to the capacities of Big Data, their
social-political consequences and the kinds of critique that may be
appropriate for assessing and responding to these developments. For the
first, I argue that size is not directly the issue but rather that, taken
together, the loose cluster of attributes of Big Data make a difference in
ways that are hard to generalize. Big Data practices echo several key
surveillance trends but in several respects they point to realities that have
perhaps been underestimated. One is that, within surveillance studies there
has been a general tendency to analyze multiple forms of surveillance that
are not directly linked with state-based, top-down surveillance of the kind
epitomized in George Orwells Nineteen-Eighty-Four. If this was understood by
some to mean that more generalized or, following Gilles Deleuze,
rhizomic surveillance spells less state surveillance activity, the Snowden
revelations are rapidly dispelling that illusion.
However, those revelations, which as I show above, indicate an increasing
dependence on Big Data practices, also lay bare in ways that were known
only hazily before just how far security and intelligence agencies depend on
data obtained from the commercial realm. These are consequences that cry
out for careful consideration. In a sense, this means that Orwells bleak vision
of what tendencies in post-war liberal democratic polities could lead to
authoritarian surveillance regimes were not mistaken so much as standing in

need of complementary analyses, such as that of his contemporary, Aldous


Huxley, in Brave New World. Big Data practices in consumer surveillance are
(now literally!) co-travelers with those of state surveillance and together
produce the kinds of outcomes around which ethical debates should now
revolve. Indeed, not only are they co-travelers, they also cooperate
extensively, the one taking methods from the other, with, as discussed
above, potentially pernicious results as the successful methods in one area
are applied in ways deleterious of human rights in another. Sadly, little time
seems to be spent on such matters in typical computing studies departments
in todays universities, where all too often notions like privacy and civil
liberties are regarded as a nuisance that slows research development
(Narayanan and Vallor, 2014).
It is these matters in particular that attract critique, especially in relation to
anticipatory and preemptive approaches common to Big Data mindsets and
activities and amplifying what is a long-term surveillance trend. These fit
neatly, of course, with currently intensifying political styles of neo-liberalism
that, with regard to national security, are seen in a list towards
actuarialism and a consequentialist concern with managing disorder and
crime rather than seeking its causes and attempting to eradicate them
(Agamben, 2013). Let me give two examples. Critically, certain timehonored legal protections such as a presumption of innocence or
proof beyond reasonable doubt are being eroded within a number of
western societies precisely due to the developing reliance on big-data-led
beliefs that suspects can be isolated by category and algorithm. Even if
onetime suspects have their names cleared by judicial process, the fact
that Big Data practices exemplified in the collect-it-all slogan include
retaining data indefinitely, it can be hard for persons with a record ever to
make a fresh start. Data in the Canadian Police Information Centre, for
example, remain there permanently. And when police include mental health
problems in their records these can lead to denial of entry to Canadians
trying to cross the border into the US. Attempted suicide calls, for example,
have been uploaded to international databases with just this outcome (CBC,
2014).

States of Exception are becoming the normal, and people


lose all rights and liberties
Agamben, 2003
Giorgio, 2003, GIORGIO AGAMBEN - STATE OF EXCEPTION, The European
Graduate School, http://www.egs.edu/faculty/giorgio-agamben/articles/stateof-exception/
[[[At least since Napoleons decree of December 24, 1811, French doctrine
has opposed a "fictitious or political" state of siege in contradistinction to a
military state of siege. In this context, English jurisprudence speaks of a
"fancied exception"; Nazi legal theorists spoke unconditionally of an
"intentional state of exception" in order to install the National Socialist State.
During the world wars, the recourse to a state of exception was spread to all
the belligerent States. Today, in the face of the continuous progression
of something that could be defined as a "global civil war," the state

of exception tends more and more to present itself as the dominant


paradigm of government in contemporary politics. Once the state of
exception has become the rule, there is a danger that this
transformation of a provisional and exceptional measure into a
technique of government will entail the loss of the traditional
distinction between different forms of Constitution.
The basic significance of the state of exception as an original
structure through which law incorporates the living being - and, this,
by suspending itself - has emerged with full clarity in the military
order that the President of the United States issued on November
13, 2001. The issue was to subject non-citizens suspected of terrorist
activities to special jurisdiction that would include "indefinite detention" and
military tribunals. The U.S. Patriot Act of October 26, 2001, already authorized
the Attorney General to detain every alien suspected of endangering national
security. Nevertheless, within seven days, this alien had to either be expelled
or accused of some crime. What was new in Bushs order was that it
radically eradicated the legal status of these individuals, and
produced entities that could be neither named nor classified by the
Law. Those Talibans captured in Afghanistan are not only excluded
from the status as Prisoners of War defined by the Geneva
Conventions, they do not correspond to any jurisdiction set by
American law: neither prisoners nor accused, they are simply
detainees, they are subjected to pure de facto sovereignty/to a
detention that is indefinite not only in its temporal sense, but also in
its nature, since it is outside of the law and of all forms of legal
control. With the detainees at Guantamo Bay, naked life returns to
its most extreme indetermination.]]]
The most rigorous attempt to construct a theory of the state of exception can
be found in the work of Carl Schmitt. The essentials of his theory can be
found in Dictatorship, as well in Political Theology, published one year later.
Because these two books, published in the early 1920s, set a paradigm that
is not only contemporary, but may in fact find its true completion only today,
it is necessary to give a resume of their fundamental theses.
Doctrine of sovereignty
The objective of both these books is to inscribe the state of exception into a
legal context. Schmitt knows perfectly well that the state of exception, in as
far as it enacts a "suspension of the legal order in its totality," seems to
"escape every legal consideration"; but for him the issue is to ensure a
relation, no matter of what type, between the state of exception and the legal
order: "The state of exception is always distinguished from anarchy and
chaos and, in the legal sense, there is still order in it, even though it is not a
legal order." This articulation is paradoxical, since, that which should be
inscribed within the legal realm is essentially exterior to it, corresponding to
nothing less than the suspension of the legal order itself. Whatever the nature
of the operator of this inscription of the state of exception into the legal
order, Schmitt needs to show that the suspension of law still derives from the
legal domain, and not from simple anarchy. In this way, the state of exception
introduces a zone of anomy into the law, which, according to Schmitt, renders
possible an effective ordering of reality. Now we understand why the theory of
the state of exception, in Political Theology, can be presented as a doctrine of

sovereignty. The sovereign, who can proclaim a state of exception, is thereby


ensured of remaining anchored in the legal order. But precisely because the
decision here concerns the annulation of the norm, and consequently,
because the state of exception represents the control of a space that is
neither external nor internal, "the sovereign remains exterior to the normally
valid legal order, and nevertheless belongs to it, since he is responsible for
decision whether the Constitution can be suspended in toto."
Ecstasy-belonging
To be outside and yet belong: such is the topological structure of the state of
exception, and since the being of the sovereign, who decides over the
exception, is logically defined by this very structure, he may also be
characterized by the oxymoron of an "ecstasy-belonging."
1. In 1990, Jacques Derrida gave a lecture in New York entitled "Force de loi:
le fondement mystique de lautorite." ["Force of Law: the Mystical Foundation
of Authority"] The lecture, that in fact consisted of a reading of an essay by
Walter Benjamin, "Towards a Critique of Violence," provoked a big debate
among philosophers and legal theorists. That no one had proposed an
analysis of the seemingly enigmatic formula that gave the lecture its title is
not only a sign of the profound chiasm separating philosophical and legal
culture, but of the decadence of the latter. The syntagm "Force de loi" refers
back to a long tradition of Roman and Medieval Law where it signifies
"efficacy, the capacity to oblige," in a general sense. But it was only in the
modern era, in the context of the French Revolution, that this expression
began designating the supreme value of acts expressed by an assembly
representative of the people. In article 6 from the Constitution of 1791, "force
de loi" designates the indestructible character of the law, that the sovereign
himself can neither abrogate nor modify.
From a technical point of view, it is important to note that in modern as well
as ancient doctrine, the syntagm "force de loi" refers not to the law itself, but
to the decrees which have, as the expression goes, "force de loi" - decrees
that the executive power in certain cases can be authorized to give, and most
notably in the case of a state of exception. The concept of "force de loi," as a
technical legal term defines a separation between the efficacy of law and its
formal essence, by which the decrees and measures that are not formally
laws still acquire its force.
Anomic space
This type of confusion between the acts by an executive power and those by
a legislative power is a necessary characteristic of the state of exception.
(The most extreme case being the Nazi regime, where, as Eichmann
constantly repeated, "the words of the Fuhrer had the force of law.") And in
contemporary democracies, the creation of laws by governmental decrees
that are subsequently ratified by Parliament has become a routine practice.
Today/the Republic is not parliamentary. It is governmental. But from a
technical point of view, what is specific for the state of exception is not so
much the confusion of powers as it is the isolation of the force of law from the
law itself. The state of exception defines a regime of the law within which the
norm is valid but cannot be applied (since it has no force), and where acts
that do not have the value of law acquire the force of law. This means,
ultimately, that the force of law fluctuates as an indeterminate element that
can be claimed both by the authority of the State or by a revolutionary

organization. The state of exception is an anomic space in which what is at


stake is a force of law without law. Such a force of law is indeed a mystical
element, or rather a fiction by means of which the law attempts to make
anomy a part of itself. But how should we understand such a mystical
element, one by which the law survives its own effacement and acts as a
pure force in the state of exception?
2. The specific quality of the state of exception appears clearly if we examine
one measure in Roman Law that may be considered as its true archetype, the
iustitium. When the Roman Senate was alerted to a situation that seemed to
threaten or compromise the Republic, they pronounced a senatus consultum
ultimum, whereby consuls (or their substitutes, and each citizen) were
compelled to take all possible measures to assure the security of the State.
The senatus consultum implied a decree by which one declared the tumultus,
i.e., a state of exception caused by internal disorder or an insurrection whose
consequence was the proclamation of a iustutium.
The term iustitium - construed precisely like solstitium literally signifies "to
arrest, suspend the ius, the legal order." The Roman grammarians explained
the term in the following way: "When the law marks a point of arrest, just as
the sun in its solstice." Consequently, the iustitium was not so much a
suspension within the framework of the administration of justice, as a
suspension of the law itself. If we would like to grasp the nature and structure
of the state of exception, we first must comprehend the paradoxical status of
this legal institution that simply consists in the production of a leg. void, the
production of a space entirely deprived by ius. Consider the iustitium
mentioned by Cicero in one of his Philippic Discourses. Anthonys army is
marching toward Rome, and the consul Cicero addresses the Senate in the
following terms: "I judge it necessary to declare tumultus, to proclaim
iustitium and to prepare for combat." The usual translation of iustitium as
"legal vacancy" here seems quite pointless. On the contrary, faced with a
dangerous situation, the issue is to abolish the restrictions imposed by the
laws on action by the magistrate - i.e., essentially the interdiction against
putting a citizen to death without having recourse to popular judgment.
Faced with this anomic space that violently comes to coalesce with that of the
City, both ancient and modern writers seem to oscillate between two
contradictory conceptions: either to make iustitium correspond to the idea of
a complete anomy within which all power and all legal structures are
abolished, or to conceive of it as the very plentitude of law where it coincides
with the totality of the real.
Un-executing the law
Whence the question: what is the nature of the acts committed during
iustitium? From the moment they are carried out in a legal void they ought to
be considered as pure facts with no legal connotation: The question is
important, because we are here contemplating a sphere of action that implies
above all the license to kill. Thus historians have asked the question of
whether a magistrate who kills a citizen during a iustitium can be put on trial
for homicide once the iustitium is over. Here we are faced with a type of
action which appears to exceed the traditional legal distinction between
legislation, execution, and transgression. The magistrate who acts during the
iustitium is like an officer during the state of exception, who neither carries
out the law, nor transgresses it, just as little as he is in the process of

creating a new law. To use a paradoxical expression, we could say that he is


in the process of "un-executing" the law. But what does it meant un-execute
the law? How should we conceive of this particular class within the entire
range of human actions? Let us now attempt to develop the results of our
genealogical investigation into the iustitium from the perspective of a general
theory of the state of exception.
- The state of exception is not a dictatorship, but a space devoid of law. In the
Roman Constitution, the dictator was a certain type of magistrate who
received his power from a law voted on by the people The iustitium, on the
contrary, just as the modern state of exception does not imply the creation of
a new magistrate, only the creation of zone of anomy in which all legal
determinations find themselves inactivated. In this way, and in spite of the
common view, neither Mussolini nor Hitler can be technically defined as
dictators. Hitler, in particular, was Chancellor of the Reich, legally appointed
by the president What characterizes the Nazi regime, and makes it into such
a dangerous model, is that it allowed the Weimar Constitution to exist, while
doubling it with a secondary and legally non-formalized structure the could
not exist alongside the first without the support of a generalize state of
exception.
- For one reason or another this space devoid of law seems so essential to the
legal order itself that the latter makes every possible attempt to assure a
relation to the former, as if the law in order to guarantee its functioning would
necessarily have to entertain a relation to an anomy.
Future violence
3. It is precisely in this perspective that we have to read the debate on the
state of exception which pitted Walter Benjamin and Carl Schmitt against
each other between 1928 and 1940. The starting point of the discussion is
normally located in Benjamins reading of Political Theology in 1923, and in
the many citations from Schmitts theory of sovereignty that appeared in The
Origin of German Tragic Drama. Benjamins acknowledging of Schmitts
influence on his own thought has always been considered scandalous.
Without going into the details of this demonstration, I think it possible to
inverse the charge of scandal, in suggesting that Schmitts theory of
sovereignty can be read as the response to Benjamins critique of violence.
What is the problem Benjamin poses in his "Critique of Violence"? For him,
the question is how to establish the possibility of a future violence outside of,
or beyond the law, a violence which could rupture the dialectic between the
violence that poses and the one that conserves the law. Benjamin calls this
other violence "pure," "divine," or "revolutionary." That which the law cannot
stand, that which it resents as an intolerable menace, is the existence of a
violence that would be exterior to it, and this not only because its finalities
would be incompatible with the purpose of the legal order, but because of the
"simple fact of its exteriority."
Now we understand the sense in which Schmitts doctrine of sovereignty can
be considered as a response to Benjamins critique. The state of exception is
precisely that space in which Schmitt attempts to comprehend and
incorporate into the thesis that there is a pure violence existing outside of the
law. For Schmitt, there is no such thing as pure violence, there is no violence
absolutely exterior to the nomos, because revolutionary violence, once the
state of exception is established, it always finds itself included in the law. The

state of exception is thus the means invented by Schmitt to respond to


Benjamins thesis that there is a pure violence.
The decisive document in the Benjamin/Schmitt dossier is surely the 8th of
the theses on the concept of history: "The tradition of the oppressed teaches
us that the state of exception in which we live is not the exception but the
rule. We must attain to a conception of history that is in keeping with this
insight. Then we shall clearly realize that it is our task to bring about a real
state of exception, and this will improve our position in the struggle against
Fascism."
Exception as a rule
That the state of exception since then has become the norm does not only
signify that its undecidability has reached a point of culmination, but also that
it is no longer capable of fulfilling the task assigned to it by Schmitt.
According to him, the functioning of the legal order rests in the last instance
on an arrangement, the state of exception, whose aim it is to make the norm
applicable by a temporary suspension of its exercise. But if the exception
becomes the rule, this arrangement can no longer function and Schmitts
theory of the state of exception breaks down. In this perspective, the
distinction proposed by Benjamin between - an effective state of exception
and a fictitious state of exception is essential, although little noticed. It can
be found already in Schmitt, who borrowed it from French legal doctrine; but
this latter, in line with his critique of the liberal idea of a state governed by
law, deems any state of exception which professes to be governed by law to
be fictitious. Battle of the giants
Benjamin reformulates the opposition in order to turn it against Schmitt: once
the possibility of a state of exception, in which the exception and the norm
are temporally and spatially distinct, has fallen away, what becomes effective
is the state of exception in which we are living, and where we can no longer
distinguish the rule. In this case, all fiction of a bond between it and law
disappears: there is only a zone of anomy dominated by pure violence with
no legal cover. Now we are in a position to better understand the debate
between Schmitt and Benjamin. The dispute occurs in that anomic zone
which for Schmitt must maintain its connection to law at all costs, whereas
for Benjamin it has to be twisted free and liberated from this relation. What is
at issue here is the relation between violence and law, i.e., the status of
violence as a cipher for political action. The logomachia over anomy seems to
be equally decisive for Western politics as the "battle of the giants around
being" that has defined Western metaphysics. To pure being as the ultimate
stake of metaphysics, corresponds pure violence as the ultimate stake of the
political; to the onto-theological strategy that wants pure being within the net
of logos, corresponds the strategy of exception that has to secure the relation
between violence and law. It is as if law and logos would need an anomic or
"a-logic" zone of suspension in order to found their relation to life.
4. The structural proximity between law and anomy, between pure violence
and the state of exception also has, as is often the case, an inverted figure.
Historians, ethnologists, and folklore specialists are well acquainted with
anomic festivals, like the Roman Saturnalias, the charivari, and the Medieval
carnival, that suspend and invert the legal and social relations defining
normal order. Masters pass over into the service of servants, men dress up
and behave like animals, bad habits and crimes that would normally be illegal

are suddenly authorized. Karl Meuli was the first to emphasize the connection
between these anomic festivals and the situations of suspended law that
characterize certain archaic penal institutions. Here, as well as in the
iustitium, it is possible to kill a man without going to trial, to destroy his
house, and take his belongings. Far from reproducing a mythological past, the
disorder of the carnival and the tumultuous destruction of the charivari reactualize a real historical situation of anomy. The ambiguous connection
between law and anomy is thus brought to light: the state of exception is
transformed into an unrestrained festival where one displays pure violence in
order to enjoy it in full freedom.
5. The Western political system thus seems to be a double apparatus,
founded in a dialectic between two heterogeneous and, as it were,
antithetical elements; nomos and anomy, legal right and pure violence, the
law and the forms of life whose articulation is to be guaranteed by the state
of exception. As long as these elements remain separated, their dialectic
works, but when they tend toward a reciprocal indetermination and to a
fusion into a unique power with two sides, when the state of exception
becomes the rule, the political system transforms into an apparatus of death.
We ask: why does nomos have a constitutive need for anomy? Why does the
politics of the West have to measure up to this interior void? What, then, is
the substance of the political, if it is essentially assigned to this legal
vacuum? As long as we are not able to respond to these questions, we can no
more respond to this other question whose echo traverses all of Western
political history: what does it mean to act politically?
This text is an extract from a lecture given at the Centre Roland-Barthes
(Universite Paris VII, Denis-Diderot) and an edited translation of 'Lo stato di
eccezione come paradigma di governo': the first chapter of Agamben's 'Stato
di eccezione. Homo Sacer II' (Bollati Boringhieri, May 2003, Torino).

State of Exception
The governments surveillance take away its citizens
liberties, the reauthorization of these programs create a
permanent state of exception. WE ARE ALL HOMO SACER.
Cardin, the editor of BORN TO FEAR: INTERVIEWS WITH THOMAS LIGOTTI and the academic
encyclopedias MUMMIES AROUND THE WORLD and GHOSTS, SPIRITS, AND PSYCHICS: THE
PARANORMAL FROM ALCHEMY TO ZOMBIES. 2013. (Matt, Teeming Brain founder and editor
Matt Cardin is the author of DARK AWAKENINGS, DIVINATIONS OF THE DEEP, A COURSE IN
DEMONIC CREATIVITY: A WRITER'S GUIDE TO THE INNER GENIUS, and the forthcoming TO ROUSE
LEVIATHAN. Americas post 9/11 surveillance state: Orwell mets Kafka in the

Long Emergency, The Teeming Brain,


http://www.teemingbrain.com/2013/06/13/americas-post-911-surveillancestate-orwell-mets-kafka-in-the-long-emergency/)
Here in the midst of the still-building storm and scandal over the revelations
about PRISM referring (in case youve recently been living under a rock or
sunk in a coma) to the system the NSA uses to gain access to the
private communications of users of nine popular Internet services
journalist and social media specialist Jared Keller offers these sobering and, to
my mind, utterly necessary reflections on the equally troubling revelation
that many Americans are deeply complacent about the whole thing: Despite
days of headlines about the American surveillance state and
government invasions of privacy (and a huge spike in sales of George
Orwells 1984 on Amazon), Americans seem to have accepted the scope
and reach of the post-9/11 surveillance state into their lives as
necessary. . . . Why are Americans so comfortable with the surveillance
state? Its likely that this acceptance goes hand-in-hand with an acceptance
of the reality of modern terrorism. . . . The threat of terror in our cities,
immediately after 9/11, was paralyzing. Now, despite the horror of the
bombings in Boston and the attacks that have been thwarted by
counterterrorism efforts in the years since 9/11 (like Najibullah Zazis 2009
plot to detonate explosives on the New York subway), terrorism seems to
have become more accepted as a modern geopolitical phenomenon, a fixture
in the background of our daily lives. . . . . [I]f terrorism and the resulting
surveillance state have become accepted features of American
public life (which, according to the latest polls, they have), then the
apparatus the government deploys to adjudicate and prosecute our
war on terror should become normalized in our existing legal
regime. The Patriot Act and National Emergencies Acts that provide
the legal basis for the modern surveillance state were supposed to
be temporary emergencies, but with their continued reauthorization by Presidents Bush and Obama, they have become the
norm. Jared Keller, Why Dont Americans Seems to Care about
Government Surveillance? Pacific Standard, June 12, 2013 Keller goes on to

point out the really deep impact of these things on our collective
circumstance here in the U.S.A.: We are lurching from emergency to
emergency, living in a permanent state of exception . Margot Kaminski,
executive director of the Information Society Project at Yale Law School, puts
it nicely in The Atlantic: Foreign intelligence is the exception that has
swallowed the Fourth Amendment whole. This, I think, is the most
significant impact of Snowdens leak: not necessarily to expose
wrongdoing in the legal sense (since the sweeping dragnet of Prism
and the NSAs monitoring of Verizons phone records are technically
legal) but to take the abstract legal concepts outlined under our
emergency constitution and translate them into a political reality in
the minds of the American populace. I really want the focus to be on
these documents and the debate which I hope this will trigger among citizens
around the globe about what kind of world we want to live in, Snowden told
The Guardian. My sole motive is to inform the public as to that which is done
in their name and that which is done against them. The Pew/Washington
Post poll may indicate that people are comfortable with swapping
liberty for security, but that doesnt mean theyre comfortable with
an unaccountable, totally opaque, Kafka-esque security apparatus
that falls in the legal gray area of our ongoing state of exception. By
way of context, I ask you to recall what our old Teeming Brain friend James
Howard Kunstler said, and said very loudly, in his best-selling book The Long
Emergency: Surviving the Converging Catastrophes of the Twenty-First
Century, which was published way back in the prehistoric mists of 2005.
Writing in the immediate aftermath of 9/11, and witnessing the craziness all
around him, Kunstler prophesied thus: It has been very hard for Americans
lost in dark raptures of nonstop infotainment, recreational shopping and
compulsive motoring to make sense of the gathering forces that will
fundamentally alter the terms of everyday life in our technological society.
Even after the terrorist attacks of 9/11, America is still sleepwalking into the
future. I call this coming time the Long Emergency. . . . [W]e are entering a
historical period of potentially great instability, turbulence and hardship. Or
actually that particular passage comes from a 2005 article by Kunstler in
Rolling Stone, likewise titled The Long Emergency. Kunstlers main focus in
that article and his book was not terrorism or surveillance but the seismic
shaking of industrial civilizations foundations by the dawning of the age of
scarcity for cheap and easy fossil fuels (a development that isnt belied but
confirmed by all of the recent talk about the new oil bonanza, which is the
result of massive investments in the kind of galactically complex and far out
alternative oil extraction maneuvers that were formerly inconceivable
because they were unnecessary). But his Long Emergency characterization
still clearly encompassed terrorism and the growth of a massive surveillance
state in America and elsewhere to complement the massive geopolitical
conflicts and at-home unpleasantness stemming from oil-fueled imperial
ambitions. Again, Kunstler said those things eight years ago. And he was
hardly alone. In other words, its as our transformation here in
America into an Orwellian and Kafka-esque surveillance state where

the all-consuming desire to snoop and fully crucify the notion of


privacy is driven by the reality of our lurching from emergency to
emergency, living in a permanent state of exception its as if this
transformation is unfolding according to a well-foreseen plan. Just
like, say, the financial and economic collapse of 2008, which was foreseen by
Kunstler and others but pshawed by the talking heads who were supposed to
represent authoritative and trustworthy mainstream wisdom. These
authorities, we were told, offered a bulwark of sanity and sensibleness
against the kooks who said the entire economy of not just America but
Europe and elsewhere was all a big, crazy, scary, evanescent hallucination
that was primed to pop like a soap bubble. But pop it did . And living in the
Long Emergency we are. All bets are still off, just as they were several
years ago when the meaning of common sense shifted to something were
still trying to figure out. Only now were doing it while being tracked,
recorded, and analyzed every step of the way.

Bios/Zoe Alternative
The alternative is to end all sovereign attempts to call
politics to one order and the refusal to draw lines.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth
University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at

Manchester Universit, Through the Wire: Relations of Power and Relations of


Violence, Millennium - Journal of International Studies 20 05, PG 12)
To summarise the argument so far: Agamben argues that the
drawing of lines between zoe- and bios constitutes the fundamental
activity of sovereign power [that] is the production of bare life as
originary political element.47 The problem with this, as he

demonstrates, is that bare life remains included in


politics in the form of the exception, that is, as something
that is included solely through an exclusion.48 It is this
that leads us to the camps and to his disheartening
declaration that today we are all virtually homines
sacri.49 Perhaps it is this conclusion that prompts
William Connolly to say that Agamben proffers a logic of
sovereignty which brings us to an historical impasse
where no way out is disclosed.50 Against Connollys
reading, we suggest that Agambens contribution
provides an insight into ways in which sovereign power
can be challenged and indeed its logic or grammar
refused. As we have pointed out, the possibility of
resistance is in general not one which relies on an
escape or emancipation from power relations. Indeed,
we have argued that such an escape leads us into the
camps, which are marked by such an absence of power
relations. What we will call a challenge to or contestation of
sovereign power, on the contrary, entails a displacement of
sovereign power and a return to properly political power relations: a
life of power. A challenge to sovereign powers creation of zones of
indistinction (the concentration camp being the paradigmatic
example) cannot consist of a call for a reinstatement of classical
politics, a reinstatement of the distinction between zoe- and bios.

Firstly, this is not a possibility because the very


distinction itself, and the lines that it draws, is the
fundamental activity of sovereign power.51 Secondly, the
classical distinction requires that bare life can only be
included through an exclusion in the form of an exception.
There cannot be a return to a politics that maintains the distinction

between zoe- and bios, or, in Agambens words: There is no

return from the camps to classical politics. In the camps,


city and house became indistinguishable, and the
possibility of differentiating between our biological body
and our political body between what is incommunicable
and mute and what is communicable and sayable was
taken from us forever.52 Either way, whether through an
emancipatory ideal or through a reinstatement of classical politics,
we would all remain homines sacri or bare life. However, challenge
may be possible not through emancipation or nostalgic return, but,
as we will argue, through either of two other strategies: first,
through a refusal to draw lines and second, through the assumption
of bare life. We have argued that Agambens work

demonstrates that sovereign power is no longer a form of


power relation in Foucauldian terms but a relationship of
violence (as his discussion of the camp shows). Since this
is the case, however paradoxical it may seem, challenges
to sovereign power take place when there is a demand for
a return to properly political power relations, and take the
form of such a demand. Agambens injunction is that we must
find a completely new politics that is, a politics no longer founded
on the exceptio of bare life .53 If the zone of indistinction has

extended beyond the camp to embrace much of the rest


of the world, then what we have is an extension of bare
life, and its lack of relationalities of power: in other
words, an impossibility of politics. The absence of a power
relation is not desirable because there is then no
possibility of resistance. We have nothing but a form of
servitude or slavery. So, rephrasing it in Foucauldian
terms, Agambens argument is that we have moved from a relation
of power to a relationship of violence. Let us remind ourselves how
Foucault describes such a relationship and its contrast with a power
relation: A relationship of violence acts upon a body or upon things;
it forces, it bends, it breaks, it destroys, or it closes off all
possibilities. Its opposite pole can only be passivity, and if it

comes up against any resistance it has no other option


but to try to break it down. A power relationship, on the
other hand, can only be articulated on the basis of two
elements that are indispensable if it is really to be a
power relationship: that the other (the one over whom
power is exercised) is recognised and maintained to the
very end as a subject who acts; and that, faced with a
relationship of power, a whole field of responses,

reactions, results, and possible inventions may open


up.54 In this context it then makes sense when Agamben
argues that the question we should be addressing is not
Is there any escape from power relations? but, on the
contrary, We do not see sovereignty as an ontological
condition of the possibility of order as such, as Sergei
Prozorov argues.55 In our view it is not inconceivable that
there might be forms of social and political organisation
which would not entail a life under the sway of sovereign
power and would still represent a form of order, though a
very different one. They may well seem wholly
unintelligible, entirely meaningless, outright
inconceivable or even quaintly paradoxical when viewed
from the framework of sovereign power.56 We are indeed
issuing a call to dispense with the very principle of
order57 when it concerns an order founded on the
sovereign ban. We do not deny that the sovereign
exception is constitutive of such an order;58 we do deny
that sovereign power constitutes the only possible form
of political life, and indeed that it constitutes a political
life at all. Since sovereign power relies on two things first, the
drawing of lines between forms of life, and, second, the production
thereby of a generalised bare life there are two ways the demand
for a return to politics can be articulated: the refusal of sovereign
distinctions and the assumption of bare life. We elaborate what

we mean by this in the remainder of this article.

We need a new political structure absent the state of exception; an


ethical refusal of line drawing is the only way to prevent us all from
becoming homo sacer.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth
University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at
Manchester Universit, Through the Wire: Relations of Power and Relations of
Violence, Millennium - Journal of International Studies 20 05, PG 12)
To summarise the argument so far: Agamben argues that the drawing of lines
between zoe- and bios constitutes the fundamental activity of sovereign
power [that] is the production of bare life as originary political element .47

The problem with this, as he demonstrates, is that bare life


remains included in politics in the form of the exception, that is,
as something that is included solely through an exclusion.48 It is
this that leads us to the camps and to his disheartening
declaration that today we are all virtually homines sacri .49 Perhaps

it is this conclusion that prompts William Connolly to say that


Agamben proffers a logic of sovereignty which brings us to an
historical impasse where no way out is disclosed.50 Against
Connollys reading, we suggest that Agambens contribution
provides an insight into ways in which sovereign power can be
challenged and indeed its logic or grammar refused. As we have
pointed out, the possibility of resistance is in general not one
which relies on an escape or emancipation from power
relations. Indeed, we have argued that such an escape leads us
into the camps, which are marked by such an absence of power
relations. What we will call a challenge to or contestation of sovereign
power, on the contrary, entails a displacement of sovereign power and a
return to properly political power relations: a life of power. A challenge to
sovereign powers creation of zones of indistinction (the concentration camp
being the paradigmatic example) cannot consist of a call for a reinstatement
of classical politics, a reinstatement of the distinction between zoe- and bios.
Firstly, this is not a possibility because the very distinction itself, and the lines
that it draws, is the fundamental activity of sovereign power. 51 Secondly,

the classical distinction requires that bare life can only be


included through an exclusion in the form of an exception. There

cannot be a return to a politics that maintains the distinction between zoeand bios, or, in Agambens words: There is no return from the camps to

classical politics. In the camps, city and house became


indistinguishable, and the possibility of differentiating between
our biological body and our political body between what is
incommunicable and mute and what is communicable and
sayable was taken from us forever.52 Either way, whether through

an emancipatory ideal or through a reinstatement of classical politics, we


would all remain homines sacri or bare life. However, challenge may be
possible not through emancipation or nostalgic return, but, as we will argue,
through either of two other strategies: first, through a refusal to draw lines
and second, through the assumption of bare life. We have argued that

Agambens work demonstrates that sovereign power is no longer


a form of power relation in Foucauldian terms but a relationship
of violence (as his discussion of the camp shows). Since this is the
case, however paradoxical it may seem, challenges to sovereign power take
place when there is a demand for a return to properly political power
relations, and take the form of such a demand. Agambens injunction is that
we must find a completely new politics that is, a politics no longer founded
on the exceptio of bare life.53 If the zone of indistinction has extended
beyond the camp to embrace much of the rest of the world, then what we
have is an extension of bare life, and its lack of relationalities of power: in
other words, an impossibility of politics. The absence of a power relation is

not desirable because there is then no possibility of resistance. We have

nothing but a form of servitude or slavery. So, rephrasing it in


Foucauldian terms, Agambens argument is that we have moved
from a relation of power to a relationship of violence. Let us
remind ourselves how Foucault describes such a relationship and
its contrast with a power relation: A relationship of violence acts
upon a body or upon things; it forces, it bends, it breaks, it
destroys, or it closes off all possibilities. Its opposite pole can only
be passivity, and if it comes up against any resistance it has no
other option but to try to break it down. A power relationship, on
the other hand, can only be articulated on the basis of two
elements that are indispensable if it is really to be a power
relationship: that the other (the one over whom power is
exercised) is recognised and maintained to the very end as a
subject who acts; and that, faced with a relationship of power, a
whole field of responses, reactions, results, and possible
inventions may open up.54 In this context it then makes sense
when Agamben argues that the question we should be addressing
is not Is there any escape from power relations? but, on the
contrary, Is today a life of power available? Such a life of power
would be a life of potentialities and possibilities, a life in the field of
power relations, resistance, and freedom: in other words, a political
life. It is important to make it clear that what we are talking about is not a
challenge to a particular sovereign order, but to sovereignty, or sovereign
power, in general, as a form of order that entails specific forms of life. We do

not see sovereignty as an ontological condition of the possibility


of order as such, as Sergei Prozorov argues.55 In our view it is not
inconceivable that there might be forms of social and political organisation
which would not entail a life under the sway of sovereign power and would
still represent a form of order, though a very different one. They may well

seem wholly unintelligible, entirely meaningless, outright


inconceivable or even quaintly paradoxical when viewed from
the framework of sovereign power.56 We are indeed issuing a call
to dispense with the very principle of order57 when it concerns
an order founded on the sovereign ban. We do not deny that the
sovereign exception is constitutive of such an order;58 we do
deny that sovereign power constitutes the only possible form of
political life, and indeed that it constitutes a political life at all.
Since sovereign power relies on two things first, the drawing of lines
between forms of life, and, second, the production thereby of a generalised
bare life there are two ways the demand for a return to politics can be
articulated: the refusal of sovereign distinctions and the assumption of bare
life. We elaborate what we mean by this in the remainder of this

article.

Law/Life Alternative
The Alt is to loosen the artificial linkage between the
concepts of state and law failure to do so will result
in global civil war
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 86-87

The aim of this investigationin the urgency of the state of ex- ception in which we livewas to bring to
light the fiction that governs this arcanum imperii [secret of power] par excellence of our time. What the

the state of exceptionbut this is essentially an


empty space, in which a human action with no re- lation to law stands before
a norm with no relation to life. This does not mean that the machine, with its
empty center, is not effective; on the contrary, what we have sought to show
is precisely that it has continued to function almost without interruption from
World War One, through fascism and National Socialism, and up to our own
time. Indeed, the state of exception has today reached its maximum worldwide
deployment. The normative aspect of law can thus be obliter- ated and
contradicted with impunity by a governmental violence that while ignoring
international law externally and producing a permanent state of exception
internallynevertheless still claims to be applying the law. Of course, the task at
ark of power contains at its center is

hand is not to bring the state of exception back within its spatially and temporally defined boundaries in
order to then reaffirm the primacy of a norm and of rights that are themselves ulti- mately grounded in it.

it is not possible to return to the state of


law [stato di diritto], for at issue now are the very concepts of state and
From the real state of exception in which we live,

law. But if it is possible to attempt to halt the machine, to show its central
fiction, this is because between violence and law, between life and norm,
there is no substantial articulation. Alongside the movement that seeks to
keep them in rela- tion at all costs, there is a countermovement that, working
in an inverse direction in law and in life, always seeks to loosen what has
been artifi- cially and violently linked. That is to say, in the field of tension of our culture, two
opposite forces act, one that institutes and makes, and one that deactivates and deposes. The state of
exception is both the point of their maximum tension andas it coincides
with the rulethat which threatens today to render them indiscernible. To live
in the state of ex- ception 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.

The Alt is to show the non-relation of life and law its


key to stopping the biopolitical machine from producing
bare life
Agamben 05, Giorgio Agamben, professor of aesthetics at the University
of Verona and author of ten books, titled: State Of Exception, pages 87-88
If it is true that the articulation between life and law, between anomie and nomos,
that is produced by the state of exception is effective though fictional, one
can still not conclude from this that somewhere either beyond or before
juridical apparatuses there is an immediate ac- cess to something whose
fracture and impossible unification are repre- sented by these apparatuses.
There are not first life as a natural biolog- ical given and anomie as the state of nature, and then their

implication in law through the state of exception. On the contrary ,

the very possi- bility of


distinguishing life and law, anomie and nomos, coincides with their articulation in
the biopolitical machine. Bare life is a product of the machine and not
something that preexists it, just as law has no court in nature or in the divine
mind. Life and law, anomie and nomos, auctoritas and potestas, result from the fracture of
something to which we have no other access than through the fiction of their
articulation and the patient work that, by unmasking this fiction, separates
what it had claimed to unite. But disenchantment does not restore the enchanted thing to its
original state: According to the principle that purity never lies at the origin, disenchantment gives it only
the possibility of reaching a new condition.

To show law in its nonrelation to life and

life in its nonrelation to law means to open a space between them


for human action, which once claimed for itself the name of politics.
Politics has suffered a lasting eclipse because it has been contaminated by
law, seeing itself, at best, as constituent power (that is, violence that makes
law), when it is not reduced to merely the power to negotiate with the law.
The only truly political action, however , is that which severs the nexus
between vio- lence 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 deac- tivation of the device that, in the state of exception, tied
it to life. We will then have before us a pure law, in the sense in which Benjamin
speaks of a pure language and a pure violence. To a word that does not bind, that
neither commands nor prohibits anything, but says only itself, would
correspond an action as pure means, which shows only it- self, without any
relation to an end. And, between the two, not a lost original state, but only
the use and human praxis that the powers of law and myth had sought to
capture in the state of exception.

Responsibility Alternative
The Alternative is to unassume non responsibility? Im
not entirely sure if this could make a useful card, or if it
makes sense at all
Mills, author, 2008

Catherine, Catherine Mills is the author of many books, including Futures of


Reproduction: Bioethics and Biopolitics and Lured into Dawn, 2008. Online
book, pages 98-99, Philosophy of Agamben. Acumen Publishing, database:
ProQuest ebrary.
[[[But if we grant this argument for the moment, we can at least see
why Agamben concludes that ethical discourse should be freed from
juridical contamination. That is, if all normative or regulative
discourse is struck by a legitimation crisis, then to the extent that
ethics relies on or is derived from that discourse, it suffers from the
same problem. This means that there is an onus on Agamben to
provide an alternative set of ethical concepts that supplant the
reliance on guilt and responsibility. In this regard, he turns to the
idea of an unassumable non-responsibility. However, if responsibility
is irremediably contaminated by law, the simple reversal of assuming
responsibility into its opposite is unimaginative on Agambens part. This is
especially so given that he provides no indication why this negation itself
does not already incorporate the juridicism he wishes to avoid. In other
words, there is a question about whether the simple turn from responsibility
to non-responsibility is sufficient to eradicate all traces of juridicism from the
thinking of ethics.
Further, while he suggests the necessity of a confrontation with a
responsibility that is infinitely greater than any we could ever assume (RA:
21), such that all one can do is be faithful to it by asserting its
unassumability, there is little further clarification of what such a nonresponsibility might entail at either a conceptual or practical level. Certainly,
the idea of a responsibility that is greater than that which can be assumed by
the subject has precedent in the work of Emmanuel Lvinas. He argues
throughout his works such as Otherwise than Being that responsibility
precedes and exceeds the ethical subject and thereby holds the subject
hostage to the Other. But Agamben rejects Lvinass theorization of
responsibility on the basis that it transformed the gesture of the sponsor
[that is, an originally juridical concept] into the ethical gesture par
excellence (RA: 22). That is, rather than escaping the juridical form,
Lvinass ethics presupposes it. Consequently, if it is to be genuinely nonjuridical, Agamben cannot derive his understanding of an unassumable nonresponsibility from Lvinas. I shall return to a closer examination of the idea
of an unassumable nonresponsibility and Agambens rejection of Lvinass
ethics in the following section on subjectivity and responsibility.]]]

Sovereignty Alternative
The alt is to destroy the sovereign authority
Kotsko, professor, June 4th, 2013

Adam, Adam Kotsko is Assistant Professor of Humanities at Shimer College in


Chicago and the translator of Giorgio Agamben, June 4th, 2013How to Read
Agamben, Los Angeles Review of Books,
http://lareviewofbooks.org/essay/how-to-read-agamben
Many critics of the War on Terror, including Judith Butler, have used
Agambens terminology to mount a kind of moral critique of American foreign
policy. One might say, for instance, that the US government is wrong to
create a kind of exceptional law-free zone in Guantnamo Bay, because that
results in turning the detainees into bare life which is bad. And certainly
it is; yet Agambens political work is a little too complex to fit easily into this
kind of moralizing discourse. For Agamben, the answer to the problem
posed by sovereign power cannot be to return to the normal
conditions of the rule of law, because Western political systems have
always contained in their very structure the seeds that would grow
into our universalized exception. It cant be a matter of refraining
from reducing people to bare life, because that is just what
Western legal structures do. The extreme, destructive conjunction of
sovereign authority and bare life is not a catastrophe that we could
have somehow avoided: for Agamben, it represents the deepest and
truest structure of the law.
Now may be the time to return to that Kafka story about Alexander the
Greats horse Bucephalus, entitled The New Attorney. (The text is available
here. I recommend you take a moment to read it its very short, and quite
interesting.) In this brief fragment, we learn that Bucephalus has changed
careers: he is no longer a warhorse, but a lawyer. What strikes Agamben
about this story is that the steed of the greatest sovereign conqueror in the
ancient world has taken up the study of the law. For Agamben, this provides
an image of what it might look like not to go back to a previous, less
destructive form of law, but to get free of law altogether:
One day humanity will play with law just as children play with disused
objects, not in order to restore them to their canonical use but to free them
from it for good. This liberation is the task of study, or of play. And this
studious play is the passage that allows us to arrive at that justice that one of
Benjamins posthumous fragments defines as a state of the world in which
the world appears as a good that absolutely cannot be appropriated or made
juridical.
The law will not be simply done away with, but it is used in a fundamentally
different way. In place of enforcement, we have study, and in place of solemn
reverence, play. Agamben believes that the new attorney is going the state of
emergency one better: his activity not only suspends the letter of the law,
but, more importantly, suspends its force, its dominating power.

Agambens critical work always aims toward these kinds of strange, evocative
recommendations. Again and again, we find that the goal of tracking down
the paradoxes and contradictions in the law is not to fix it or provide
cautionary tales of what to avoid, but to push the paradox even further.
Agamben often uses the theological term messianic to describe his
argumentative strategy, because messianic movements throughout history
and here Agamben would include certain forms of Christianity have often
had an antagonistic relationship to the law (primarily, but not solely, the
Jewish law, or Torah). Accordingly, he frequently draws on messianic texts
from the Jewish, Christian, and Islamic traditions for inspiration in his attempt
to find a way out of the destructive paradoxes of Western legal thought.
In his most recent book to appear in English, The Highest Poverty: Monastic
Rules and Form-of-Life (2011; 2013), Agamben conducts a detailed study of
Christian monasticism, which he believes to be essentially a messianic
movement. Not only was the movement founded and renewed by people who
were unsatisfied with mainstream institutions claiming to represent a
historical claimant to the title of messiah (namely Jesus), but they also
display a particularly paradoxical relationship to the law. On the one hand,
the monastic life is regulated down to the smallest detail, creating the
impression that it represents the strictest possible form of law (an impression
that is reinforced by the existence of detailed lists of punishments for
infractions). On the other hand, monastic thinkers have always insisted that
their rules are something other than laws. Where secular law aims to provide
boundaries to life through the imposition of prohibitions and punishments,
monastic rules aim to positively shape the life of the monks.
What is at stake in monasticism is thus not the enforcement of norms, but the
very form of the monks life. Agamben believes that this blurring of the
boundary between rule and life, to the point where they become
indistinguishable, is a concrete historical attempt to achieve something like
the state of study or play that he recommends in State of Exception. He
finds the Franciscan movement to be particularly radical in this regard, and
much of The Highest Poverty takes up the task of analyzing how the
Franciscans were ultimately brought into the mainstream of Christianity, so
that we can avoid the same pitfalls in our contemporary efforts to find some
way to escape the destructive killing machine we call the law.
IV.
Based on what Ive said so far, Agambens work may appear to be very
systematic and he reinforces that impression by elaborately dividing the
project that began with Homo Sacer into various volumes and sub-volumes.
What is most appealing about Agambens work to me, though, is not its
systematicity but its open-ended and exploratory nature. For instance,
in State of Exception, he notes how frequently modern governments have
declared a state of emergency due to economic conditions, and that
ultimately led him into his vast exploration of the concept of economy
in The Kingdom and the Glory: For a Theological Genealogy of Economy and

Government (2007; 2011). That book, surprisingly, wound up encompassing


the history of the Christian doctrine of the Trinity (and included a particularly
satisfying chapter that presents the angels as Gods bureaucrats). In The
Highest Poverty, Agamben notes that the monks seem to be continually
tempted to turn their entire life into a continual act of worship which led
him to conduct a study of liturgy and its influence on contemporary concepts
of ethical duty. (That book is forthcoming later this year, under the title Opus
Dei: An Archeology of Duty.)
For this reason, I think that the best way into Agambens work may not be his
better-known political writings, but the short and fragmentary book The
Open: Man and Animal (2002; 2004). It contains several unforgettable
passages perhaps most notable is the story of an unfortunate tick that was
deprived of all sensory input by researchers and persisted in this state for
nearly two decades. This leads Agamben to ask a series of probing questions
that have implications far beyond the fate of a tick:
But what becomes of the tick and its world in this state of suspension that
lasts eighteen years? How is it possible for a living being that consists entirely
in its relationship with the environment to survive in absolute deprivation of
that environment? And what sense does it make to speak of waiting without
time and without world?
I expect that The Open will challenge almost everyones preconceptions
about animals in some way. Its not clear how all the pieces of Agambens
argument fit together, but this only increases the books effectiveness for me:
its not a definitive answer to the question of how humans and animals relate,
but a book to think with.
Reading The Open or other Agamben books in a similar vein, such as The
Coming Community (1990; 1993) or Nudities (2009; 2010) before coming
to the more imposing political works may be useful, as they help to clarify
the way Agamben thinks before one is faced with the issue of what he thinks.
For all their sweeping ambition and programmatic claims, the political works
fundamentally represent the same fragmentary and improvisational style of
intellectual exploration as the more miscellaneous entries in Agambens
canon; in all his writings, he exemplifies the study or play with the Western
cultural and political tradition that he advocates. Whatever else Agambens
works manage to achieve, they may ultimately be most successful when they
serve to invite us to join him in the serious pursuit of study as play.

2NC Alternative Solves


The refusal to draw lines is necessary to having a proper
political power relation and any social change.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth
University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at

Manchester Universit, Through the Wire: Relations of Power and Relations of


Violence, Millennium - Journal of International Studies 20 05, PG 23)
Conclusion We have traced how sovereign power, that form of rule
that today pervades the globe, produces bare life as the form of life
under its sway. We have argued here that, despite appearances, sovereign
power is most productively considered not as a form of power relation but
rather as a relationship of violence. In that it seeks to refuse those whose
lives it controls any politically valid response, it operates as a form of
technologised administration. A power relation is one that is invariably
accompanied by resistance: the subjects it produces are party to the relation,
and their resistance is a necessary component of what is happening.
Sovereign power on the other hand, with its production of bare life,
not political subjects, attempts to rule out the possibility of
resistance. A properly political power relation is not practicable in
those circumstances. What this tells us is that to contest sovereign
power we need something different. In challenging sovereign power
we are not facing a power relation but a relationship of violence, one
that denies a political voice to the form of life it has produced. Resistance
such as would be possible from within a power relation, and indeed as an
inherent part of it, cannot take place. Other forms of opposition must be
found, forms that seek to reinstate a properly political relationship. Two
strategies of contestation were suggested: a refusal to draw lines
and an assumption of bare life. First, the refusal. The drawing of lines
between forms of life is the way in which sovereign power produces
bare life. That drawing of lines must be refused, wherever the lines
are drawn. Negotiating the precise location of the lines remains
within the violence of sovereign power. A refusal to draw any line
between forms of life, on the other hand, takes away the ground
upon which sovereign power is constituted. Second, the assumption.
When life is produced as bare life it is not helpful for that life to
demand its reinstatement as politically qualified life. To do so would
be to validate the very drawing of lines upon which sovereign power
depends and which produces life as bare life in the first place. An
alternative strategy is the taking on or what we have called the
assumption of bare life. Through this strategy the subject at one and
the same time both acknowledges its status as nothing but life and demands
recognition as such. It refuses the distinction between bare life and
politically qualified life. As is apparent, the two strategies are at heart the

same. Both seek to overturn the denial of politics that has taken
place under biopolitics and to reinstate properly political power
relations , with their accompanying freedoms and potentialities. We
have discussed an example of what such contestation of sovereign power
might look like. Practices that challenge or refuse sovereign power are
apparent in many locations: whether in hunger strikes or street
demonstrations, creative ways of provoking sovereign power and
embroiling it into a political or power relation have been and are
being found, through the wire.

The use of violent dissent will be successful in solving the


state of exception empirics prove.
McQuillan 15 Lecturer in Creative and Social Computing at Goldsmiths,
University of London (Dan; PhD in Experimental Particle Physics, Director of
E-communications for Amnesty International, co-founder of Social Innovation
Camp; Algorithmic States of Exception; European Journal of Cultural Studies
18(4/5); SAGE Journals; 01/07/15;
http://ecs.sagepub.com.proxy.lib.umich.edu/content/18/4-5/564.full.pdf+html)
Means of resistance
When considering what is to be done about the state of exception, Agamben
draws on the ideas of Walter Benjamin, specifically the possibility of pure
violence or pure means. Benjamins (1995) line of thought is laid out in his
essay On the Critique of Violence, which sets out to escape the forms of
violence (e.g. state vs revolutionary) that are offered as alternatives but in
fact co-define each other. He asserts that all violence as a means is either
law-making or law-preserving. By this he means that violence either plays a
part in constituting a new situation or is carried out by institutions trying to
preserve the status quo. Taken together, these forms of violence are mythic
in the sense that they form an inescapable cycle. Moreover, they can never
be easily separated because the practice of law-preserving always involves
extension into constituting new sanctions. Benjamins escape is a pure
means that breaks the cycle of mythic violence. So in Benjamins mostly
abstract reasoning, we have a model for contesting states of exception,
according to Agamben (2005), because it does not ultimately rest on the
authority of a legal framework which has at its centre the state of exception
[which] is essentially an empty space (p. 86). Against a space that is
devoid of law, we have a resistance that escapes the cycle of law-making and
law-preserving. In the remainder of this article, I take this approach to
suggesting lines of resistance to algorithmic states of exception. I do this
through two historical examples that, I suggest, crystallise Benjamins and
Agambens ideas as concrete social possibilities. I link each historical
example to signs of similar modalities in contemporary struggles, and ask
whether they constitute viable starting points for resistance.
The first historical example is antinomianism, which manifested itself in the
13th and 14th centuries through the movement known as the Brethren of the
Free Spirit. For the Brethren of the Free Spirit, God was immanent in
everything and could therefore be directly experienced (Cohn, 1970). Those

who were able to share this experience of oneness considered that they had
moved beyond religious morality and earthly authority. As one said defiantly
to his inquisitor, Those who are in this degree of perfection and in the
freedom of spirit are no longer obliged to obey men, or any precept, or the
rules of the Church: they are truly free (Vaneigem, 1998). The message was
one of a radical freedom through a direct immersion in the very ground of
being. Although heavily repressed, antinomianism frustrated the Inquisition
by frequently resurfacing and led directly to later currents of social change
such as the Levellers and Ranters of the English Civil War (Hill, 1991). We can
still experience some of their intoxicating irreverence through surviving texts
such as Abiezer Coppes (1973 [1649]) A Fiery Flying Roll, whose fiery
rhetoric is designed to punch through rational understanding. Antinomianism
as a philosophy and social practice fits Benjamins description of action from
the outside that neither creates nor preserves law. I suggest that we can hear
an echo of antinominianism in the contemporary social movement known as
Anonymous.
Anonymous is a social movement with roots in the taboo-breaking irreverence
of the online image board 4chan. It was constituted through Operation
Chanology, a set of actions against the Church of Scientology. While
Anonymous is difficult to pin down using any of the traditional categories of
ethics, sociology or history (Coleman, 2011), it draws its strength from a deep
immersion in the technical ground of the Internet and finds affinity through
the subcultural memes that move freely across the web. It rejects external
morality or constraints and features calls for absolute freedoms, especially
freedom of speech. The splinter group Lulzsec was a breakaway from
Anonymous that specialised in hacking into private security firms and state
surveillance agencies. It combined its online dumping of hacked data with
ranting statements filled with a sense of revelation about the state of the
world and the new apparatus. It was Anonymous at its most antinomian,
marked by a mocking contempt for worldly powers in the form of corporations
and governments. Lulzsecs (2011) final communiqu 50Days of Lulz is a
hacker version of Coppes ranter rhetoric. While experiencing its own version
of the Inquisition in the form of Federal Bureau of Investigation (FBI) sting
operations, Anonymous has multiplied and spread offline, with the signature
Guy Fawkes masks visible at protests across the globe. Most importantly, for
the purposes of this article, the antinomian activism of Anonymous and
Lulzsec has been disruptive of the data-fuelled apparatus of prediction and
control. Lulzsec targeted agencies and companies who are avowedly spying
on us by hacking into their databases and, in a kind of ritual inversion of the
operations of those companies, releasing their data to the public. Anonymous
sought more broadly to disrupt the apparatus of control, for example, through
Distributed Denial of Service attacks that overloaded the websites of
organisations they saw as complicit. I suggest, therefore, that the
countercultures of the Internet are already generating forms of resistance
that disrupt algorithmic enclosure without themselves engaging in the cycle
of law-making and law-preserving.
Agamben makes it clear that only peoples own determination can be relied
on to challenge the state of exception. The task is not to confine the state of
exception by appealing to rights and norms that are ultimately founded on it.
To show law in its nonrelation to life and life in its nonrelation to law means

to open a space between them for human action (p. 88), Agamben (2005)
writes. The second historical example shows such human action in a form we
could call pure norms, that is, values that enact themselves with an internal
consistency that does not appeal to an already captured system. The events
in question are the 18th century food riots, as analysed by E.P. Thompson
(1993) in his book Customs in Common. Dispelling the food riots as an
instinctive response to hunger, he discovers that the central action is not
looting but setting the price. People collectively appropriated the grain from
farms and granaries to be sold at an affordable price. As the Sheriff of
Gloucestershire wrote in 1766,
They returned in general the produce (i.e. the money) to the proprietors or in
their absence left the money for them; and behaved with great regularity and
decency where they were not opposed, with outrage and violence where they
was: but pilfered very little.
Here, we have a picture of ordinary people intervening to correct what they
see as excess, without relying on a legal framework. Thompson referred to it
as a moral economy. I suggest that a similar re-assertion of normative
relations without an appeal to law is present in the practice of Cryptoparties.
The idea of Cryptoparty was conceived in August 2012, following a Twitter
conversation between Australian privacy advocate Asher Wolf and computer
security experts in the wake of the Australian Cybercrime Legislation
Amendment Bill (Blum-Dumontet, 2012), and the do-it-yourself (DIY)
movement quickly spread with Cryptoparties popping up in cities across
Australia, United States, United Kingdom and Germany. They are peerlearning events where people share their knowledge and skills to ensure that
private online chats stay private and that email and web browsing are as
secure and anonymous as possible. Rather than trying to explain the complex
mathematical concepts behind cryptography, cryptoparties encourage people
to look at the landscape of tracking and surveillance and to develop a sense
of how they can raise the barrier to big data collection from their online
activities. The shared ethos is a deep unease with the current direction of
travel revealed by pervasive corporate tracking and blanket state
surveillance. As Smari McCarthy has argued, the aim of easier-to-use
encryption is to raise the cost for the NSA and the other intelligence
agencies, by forcing them to use scarce human resources to apply specific
targeted techniques, or to use a lot of costly processing power to break the
encryption: They can scoop up the data of 2.5 billion internet users, making
the cost per person per day a mere 13 cents. My five-year plan is to increase
that cost to $10,000 per person per day. (McCarthy, 2014) Thus,
Cryptoparties can also be seen as an example of autonomous price-setting,
motivated by community norms acting in the space between law and life.

2NC Bear Witness


The 1AC only perpetuates sovereign violence. We have an
ethical obligation to bear witness to those who are
oppressed by sovereign violence, by doing so through
the wire.
Jenny Edkins, professor of international politics at Prifysgol Aberystwyth
University (in Wales) and Veronique Pin-Fat, senior lecturer in politics at

Manchester Universit, Through the Wire: Relations of Power and Relations of


Violence, Millennium - Journal of International Studies 20 05, PG 16)
The protest we began with, that of Abbas Amini in the UK, is not
unique. Two months later, Shahin Protofeh, a fellow Iranian, did the
same in protest at being deported by the British Home Office on
refusal of his application for asylum.63 In Wales Atiquilla Kousha
gave up his similar form of protest after assurances that his case
will be dealt with fairly.64 And, in Scotland, three Kurdish refugees
staged a hunger strike and sewed their lips in response to the UK
governments decision to deport them to Iran.65 There have been
cases outside the UK too: in February 2004 Mehdy Kavousi, an asylum
seeker from Iraq who had sewn his eyes and lips shut, took part in a
demonstration against mass deportations outside the Dutch
parliament.66 Perhaps the most high-profile case of refugees protesting by
going on hunger strike and sewing their lips occurred during January 2002 at
the Woomera detention camp in Australia.67Reports vary but
between 60 and 100 refugees sewed their lips and more than 200
others staged a hunger strike in protest against the slow processing
of protection visasand the mandatory imprisonment of illegal
immigrants.68Woomera was one of the three largest detention camps
under the jurisdiction of the Australian government run by a private operator,
Australasian Correctional Management.69 Since late 1989 Australia has,
controversially, been operating a policy of mandatory and nonreviewable
detention of people arriving without documentation since late 1989. The
policy has enjoyed the bi-partisan support of successive Labor and Liberal
governments. On the one hand, detention is regarded as necessary for
maintaining immigration control and, on the other, it is endorsed as
a deterrent for those seeking to arrive in Australia in a similar
manner.70 Whilst it is not the aim of this article to critically discuss the
immigration policies of any particular government in detail, the cases of
refugee protest in Australia, especially, are salient in exploring
whether today a life of power is available. 71 Certain, albeit limited,
parallels can be drawn between detention camps and the
concentration camps , if only in the sense that both can be
identified as examples o f modes of being where there are no power
relations and resistance is impossible: sites that mark a state of

exception. For Agamben, the camp is a paradigmatic example of a


zone of indistinction which consists in the materialisation of the
state of exception and the creation of a space in which bare life
and the juridical rule enter into a threshold of indistinction . . . a
space in which normal order is defacto suspended and in which
whether or not atrocities are committed depends not on law but on
the civility and ethical sense of the police who temporarily act as
sovereign.72 Refugees fall outside what might be called the normal
law: their liberty may be suspende d for no other reason than their
having arrived within a territory which is not their own; they can be
held for what amounts to an indeterminate amount of time whilst
their applications are processed; and, depending on the state within
which they are being held, aspects of the United Nations Refugee Convention
may be violated, including access to a lawyer, review of cases, and the
principle of non-refoulement.73 One might say that the sovereign law is
defined by its capacity to transgress itself with respect to aliens.74
In short, refugees are produced in a state of exception as not
politically qualified lives but bare life . Perhaps unsurprisingly, the
majority of refugee protests involving hunger strikes and lip-sewing
have been staged by people held in immigration detention or
reception centres, such as Woomera and Curtin in Australia and Sangatte
in France.75 Four people in Nauru, an off-shore processing centre
constructed as part of Australias Pacific Solution, also protested in the
same way. Twenty-three days into their hunger strike, they
commented that still no one felt regarding us, and no one consider
regarding our problem.... Meanwhile as we are despair from DIMIA
authority ... [w]e are human.76But, equally importantly, such protests
are not confined to those detained in this way. The protest cases in the UK,
for example, are of refugees waiting in the community for their asylum
applications to be processed. Asalient feature of the UK refugees
accounts of their reasons for protesting is that they also refer to
being in a state of exception the ways in which the law is
suspended in their cases. Kousha, Protofeh,Gravindi, Haydary and Haidari,
for example, cite the violation of the principle of non-refoulement: that those
who fear persecution will not be returned to the source of their
persecution.77 In the case of Amini, his reasons were the conditions and
procedures of asylum more generally even though he was ultimately
successful in his asylum claim. Zones of indistinction therefore need
not necessarily be marked by razor wire. Rather, what marks them
is the production of life as bare life by sovereign power. The
experiences that emerge from these refugees own accounts of bare life
include despair, hopelessness, isolation, rightlessness, invisibility,
and voicelessness. The risk of speaking or speaking for is apparent here,
and acts of charity and the tacit demand that refugees be made to ask for

fundamental protections are themselves acts of intolerable violence.78


Speaking engages sovereign power inevitably in its own language.
It also risks reincorporation. However, it is possible that some forms
of verbal expression escape those constraints: poetry, for
example .79 One interesting example is the poem written by
Mehmet Al Assad , an asylum seeker incarcerated in Australia.80The poem
begins with a request, aimed directly at the reader: Will

you please
observe through the wire/ I am sewing my feet
together/ They have walked about as far/ as they
ever need to go. The second stanza again calls on us to observe, and
tells how the refugee is sewing his heart together: It is now so full of
the ashes of my days/ it will not hold any more. The
final verse reiterates: One last time/ please observe/ I am
sewing my lips together/ That which you are denying
us/ we should never have/ had to ask for. Prem Kumar
Rajaran points to the way in which Al Assads poembuilds up to a final
demand, not of a beseeching other begging to be let in as an act of charity,
but a powerful demand from the other who has a fundamental claim: that
which you are denying us we should never even have had to ask for. The
subject is hostage to the other, is fundamentally entwined with the other.81
It is a challenge to the boundedness of territory and demonstrates
the harsh violence of sovereign power and the way in which it
produces intolerable distinctions.It is interesting how the poem calls
upon us, its readers, to observe through the wire. 82We may,
indeed, be on the other side of the wire, but the poem does not let
us remain there. It asks us to look through the fence that divides us
from the asylum seeker, and to recognise our radical relationality.
We are called upon to reflect on the lines (the wire) of sovereign
power, while at the same time being summoned to move beyond
them. Al Assad does not let us forget that we are implicated in the
distinctions that are made. We are denying entry to the asylum seeker:
it is with us, not with sovereign power, that the responsibility for
hospitality lies. Both citizen and refugee are their own bare life. Al
Assad calls for this to be acknowledged, and for sovereign power to be
displaced. The protests we have outlined above are examples of
challenges that assume bare life and thus transform bare life into
form-of-life . The act of going on hunger strike, sewing ones lips
and, in some cases eyes and ears, viscerally reveals and draws

attention to the refugees own person as the bare life produced by


sovereign power : it is a re-enactment of sovereign powers
production of bare life on the body of the refugee .83 It illuminates
the way in which sovereign power , when it lays claim to the liberal
values of fair process and human rights , relies on violence and
exclusion. When Amini said that he sewed up his mouth to give
others a voice that is, to demand that others speak for him as one
who cannot speak for himself he took on the very bare life that
sovereign power imposes on him in order to unmask the
relationship of violence in which he, and others, had been placed. The
only effective challenge to this relation of violence lies in the
complete embrace of bare life as a form-oflife , or, in Agambens words,
a form of life that is wholly exhausted inbare life and a bios that is only its
own zoe-.84 Indeed we might say that the refugees sewn muteness,
deafness and blindness shows that our bare life is, indeed, all we
have left under sovereign power and illustrates the way in which
the possibility of differentiating between our biological body and
our political body between what is incommunicable and mute and
what is communicable and sayable was taken from us forever.85
This assumption of bare life as a form-of-life in itself, is in effect,
also a refusa l. What is happening is that sovereign powers drawing
of lines between bare life and politically qualified life is being
refused and a politics of radical relationality power relations put
in its place. The taking on of ones bare life offers the possibility of its
transformation into form-of-life and the reintroduction of a properly political
power relation. Sovereign power may or may not choose to engage at that
level. It is more than likely that a relation of violence will be reaffirmed, with
such a protest being read not as a political action but in other ways. In the
case of protests in Australia, several routes were employed. For example, the
protest was seen as confirming the outsider status of the asylum seekers.
The Immigration Minister, Phillip Ruddock, said Lip sewing is a practice
unknown in our culture but weve seen it before amongst detainees and its
something that offends the sensitivities of Australians. They believe it will
influence decisions. It cant and it wont.86This statement refuses to engage
with the protests, writing them as culturally insensitive, alien and misguided.
Ruddock makes it clear that such protests cant and wont influence policy:
the refugees are not politically qualified. As a refusal to engage with the
refugees it continues a relation of violence. It sidesteps the issue
however: as we have seen, the demand of the asylum seeker is not
an attempt to influence policy to change the rules about the
treatment of asylum seekers but rather to question the very
grounds upon which debates about policy are premised. A second
response was one that countered the challenge by accusing the refugees of

violence themselves. This occurred in two ways. First, they were accused of
child abuse. Prime Minister John Howard remarked:Do you really imagine that
if an eight- or ten-year-old child begins to sew his or her lips together that a
responsible parent would do other than stop him or her? Im not going to
randomly brand people as child abusers. I dont think its responsible of me to
do that. But I do know this, that the children in the proper, positive care of
their parents dont sew their lips together, do they?87 Second, their action
was scripted as self-mutilation, or in other words, violence on their own
bodies: everything is mobilised in order to represent the violence that is
inflicted and extorted from the bodies of refugees as self-generated.88 The
violence of sovereign power is assigned to the asylum seeker in the
classic gesture of denial and transference.It seems, then, that the
asylum system attempts to remove the possibility of a properly
political power relation. The refugee, fleeing persecution elsewhere and
claiming a political right to asylum, clearly appears on the face of it as
politically qualified. Once refugees enter the UK, Australia or the
Netherlands for example, they are produced in the zone of
indistinction of the camps as bare life, life that is not politically
qualified. Even the successful are no longer a political voice telling of
oppression and mistreatment but only lives to be saved. By their actions, the
refugees we discuss demonstrate that this is the case and in doing so
attempt to claim back the possibility of speaking politically. When they sew
their mouths to give others a voice, that is, to demand that others
speak for them, or to insist that what they have been denied is
something they should not have had to ask for, they are assuming
the very bare life that sovereign power imposes on them in order to
demonstrate the relationship of violence in which they have been
placed. Like the non-violent demonstrator who puts his body on the line, this
strategy is particularly effective in showing clearly that sovereign power
does not willingly enter into a power relation but rather survives
though relationships of violence. To what extent are actions of the type
we have elaborated likely to be effective? Are they anything more than
individual acts of protest that can have little impact on collective politics? In
his analysis of the multiple readings to which the protest of the Australian
asylum seekers gives rise, Joseph Pugliese suggests thatwhile the act of
sewing ones lips together is, in one sense, about exercising a degree of
power, autonomy and control within the most desperately disempowering of
spaces, the prison, in another seemingly contradictory sense, the act of
sewing ones lips transcends the individual subject.... This singular act of
sewing the lips together is already double: it conjoins the
anguished body of the individual refugee to the larger corpus of the
nation in a complex relation of power and violence.89 The act of
sewing exposes the radical relationality of state and refugee. It demonstrates
how each is entangled within the other. Without sovereign power and its
distinctions there would be no refugee; without the refugee (the non-citizen)
citizenship itself would have no meaning. As we have seen, these acts are not
carried out invisibly. They are a demand addressed directly to those who
observe through the wire, not a demand made on the terms of sovereign

power. In taking on their life as bare life, the protestors call for a
direct, unmediated, visceral response, life to life.

2NC Cede the Political


A state of exception leaves us with no relations of power
only relations of violence- concentration camps prove.
Edkins and Pin-Fat 05. Jenny Edkins, professor of international politics
at Prifysgol Aberystwyth University (in Wales) and Veronique Pin-Fat, senior
lecturer in politics at Manchester Universit, Through the Wire: Relations of
Power and Relations of Violence, Millennium - Journal of International Studies
2005, PG 8-11)
In Agambens analysis of sovereign power, the concentration camp is the
ultimate expression of the sovereign exception and the arena where
all life becomes nothing but bare life , life included by its exclusion:
Inasmuch as its inhabitants have been stripped of every political status and
reduced completely to naked life, the camp is also the most absolute
biopolitical space that has ever been realised a space in which power
confronts nothing other than pure biological life without any mediation. The
camp is the paradigm itself of political space at the point in which politics
becomes biopolitics and the homo sacer becomes indistinguishable from the
citizen.31 In modern biopolitics, Agamben argues, the zone of
indistinction exemplified in the camp is no longer localised and the
state of exception becomes the rule. The birth of the camp signals the
point at which the political system of the modern nation state ... enters
into lasting crisis, and the State decides to assume directly the care
of the nations biological life .32 Bare life becomes the technologised
subject of administration, governance and discipline, and political life
disappears: The camp, which is now securely lodged within the citys interior,
is the new biopolitical nomos of the planet.33 This leads him to the question
with which we began this section: Is today a life of power (potenza)
available?.34 For Agamben, such a life is not possible within present forms of
sovereign power and their reliance on the division of pure living itself into
forms of life. A life of power, which for Agamben is a political life, would
mean an exodus from sovereign power, a non-statist politics, and the
emancipation from such a division.35 It would entail something like a formof-life, a life for which living itself would be at stake in its own living.36 He
goes on to elaborate what he means by this: Only if I am not already and
solely enacted, but rather delivered to a possibility and a power [potenza] ...
only then a form of life can become, in its own factness and thingness, formof-life, in which it is never possible to isolate something like naked life.37
When Agamben asks the question Is today a life of power available? the
Italian term he uses for power is potenza, which, as histranslator notes, can
often resonate with implications of potentiality as well as with decentralised
or mass conceptions of force and strength.38 In the phrase sovereign
power he uses the different term, potere, which refers to the might or
authority of an already structured and centralised capacity, often an
institutionalised apparatus such as the State.39 It is potere or sovereign

power that founds itself ... on the separation of a sphere of naked life from
the context of the forms of life.40 Form-of-life, a life in which something like
naked life cannot be separated, is a life of power as potenza. Significantly,
Foucaults notion of relations of power contains within it a sense of
potentiality or possibility comparable to potenza. As we have seen, freedom
and resistance are a central part of Foucauldian power relations. A power
relation operates on the field of possibilities in which the behaviour of active
subjects is able to inscribe itself. It is a set of actions on possible actions.41
Power as potenza in Agamben is the realm of politics, or what we will call
later properly political power relations. Bare Life as a Life without Power
Relations In this section, we suggest that when the insights of Foucault and
Agamben are combined there are unexpected implications for the notion of
resistance, implications that are to be found in the depoliticised and
technologised administrative depths of the camp. We argue that both
Foucault and Agamben are gesturing towards the conclusion that bare life
is a life where power relations are absent, and, correspondingly,
that life constituted within biopolitics cannot be a political life . This
moves us then towards the somewhat surprising conclusion that far from
seeking to escape power relations, we should be attempting to reinstate
them, and with them the possibility (and possibilities or potentialities) of
politics.42 Sovereign power , despite its name , is not a properly political
power relation, we will argue, but a relationship of violence. For Foucault,
power relations are a very specific form of social relation: power relations ...
are distinct from objective capacities as well as from relations of
communication.43Power as a relation is distinct fromtechnical or objective
capacities. In addition, a power relation is to be seen as distinct from a
relationship of violence. Arelationship of violence acts immediately
and directly on others, whereas a relationship of power acts upon
their actions. 44 Slaves in chains, for example, are not in a power relation
but in a relationship of violence: Where the determining factors are
exhaustive, there is no relationship of power: slavery is not a power
relationship when a man is in chains, only when he has some possible
mobility, even a chance of escape.... At the very heart of the power
relationship, and constantly provoking it, are the recalcitrance of the will and
the intransigence of freedom.45 For Foucault power relations and freedom
occupy the same moment of possibility. Resistance is inevitable
whenever and wherever there are power relations. Without power
relations there is no possibility of resistance and no freedom. Taking
this insight from Foucault and turning the question of power on its head, we
can begin to ask what examples there might be, in practice, of a mode of
being where resistance is impossible, and hence where there is no
power relation. It can be argued, following Agamben, that the
concentration camp is such an example. In the camp the majority of
prisoners become what is termed in camp jargon Muselmnner. Primo Levi
describes these as the drowned:Their life is short, but their number is

endless; they ... form the backbone of the camp, an anonymous mass,
continually renewed and always identical, of non-men who march and labour
in silence, the divine spark dead within them, already too empty to really
suffer. One hesitates to call them living: one hesitates to call their death
death, in the face of which they have no fear, as they are too tired to
understand.46 The drowned are bare life their concerns are limited to
where the next mouthful of food is coming from and they are also
homines sacri, sacred men: they can be killed at will by the camp guards,
without ceremony and without justification having to be offered or
provocation demonstrated. More significantly for the argument here, the
drowned offer no resistance. Indeed they are indifferent to their fate. They
are reduced to a state wherethey are unable even to commit suicide: they do
not have the possibility of killing themselves as, even if there were ways in
which they could engineer their own death, they no longer have the will
either to live or die. In Foucaults terms, then, for the drowned of the
concentration camp there are no relations of power, only relations
of violence. The camp then is an example of where power relations vanish.
What we have in the camps is not a power relation. All we have is the
administration of bare life. In the camps, for those inmates who reached
the depths, who faced the Gorgon, there were no relations of power, only
relations of violence. As we have noted, Agamben importantly argues
that what took place in the camp as a zone of indistinction has
extended in the contemporary world to encompass regions outside
the camp as well. In the face of a biopolitics that technologises,
administers and depoliticises, and thereby renders the political and power
relations irrelevant , we have all become homines sacri or bare life.

2NC Emergency Now


America is stuck in a constant state of emergency
Keller, journalist, 2013

Jared, Jared Keller is a journalist living in Brooklyn, NY. His work has appeared
in the Atlantic, Bloomberg Businessweek, Al Jazeera America, the Los Angeles
Review of Books, and the Verge, 6/12/13, Why Dont Americans Seem to
Care About Government Surveillance?, Pacific Standard,
http://www.psmag.com/politics-and-law/why-dont-americans-care-aboutgovernment-surveillance-60011
The late political scientist Clinton Rossiter called this Americas
crisis government. The best description that Ive ever read for the
phenomenon comes from Italian philosopher Giorgio Agamben, who
coined the term "the state of exception" to mean a position at the
limit between politics and law ... an ambiguous, uncertain,
borderline fringe, at the intersection of the legal and the political
where an executive acts extralegally in order to preserve an existing
legal framework, effectively superseding the rule of law in order to
save it.
But if terrorism and the resulting surveillance state have become accepted
features of American public life (which, according to the latest polls, they
have), then the apparatus the government deploys to adjudicate and
prosecute our war on terror should become normalized in our existing legal
regime. The Patriot Act and National Emergencies Acts that provide
the legal basis for the modern surveillance state were supposed to
be temporary "emergencies," but with their continued reauthorization by Presidents Bush and Obama, they have become the
norm.
We are lurching from emergency to emergency, living in a
permanent state of exception. Margot Kaminski, executive director of the
Information Society Project at Yale Law School, puts it nicely in The Atlantic:
Foreign intelligence is the exception that has swallowed the Fourth
Amendment whole. This, I think, is the most significant impact of Snowdens
leak: not necessarily to expose wrongdoing in the legal sense (since the
sweeping dragnet of Prism and the NSAs monitoring of Verizons phone
records are technically legal) but to take the abstract legal concepts outlined
under our emergency constitution and translate them into a political reality in
the minds of the American populace.
"I really want the focus to be on these documents and the debate which I
hope this will trigger among citizens around the globe about what kind of
world we want to live in," Snowden told The Guardian. "My sole motive is to
inform the public as to that which is done in their name and that which is
done against them." The Pew/Washington Post poll may indicate that people
are comfortable with swapping liberty for security, but that doesnt mean

theyre comfortable with an unaccountable, totally opaque, Kafka-esque


security apparatus that falls in the legal gray area of our ongoing state of
exception.
Theres an historical anecdote that often crops up among political theorists
and legal scholars when they discuss the tradeoff between liberty and
security during national emergencies. Following the fall of the monarchy in
509 BCE, the Roman republic moved to establish an executive branch that
was headed by two co-equal magistrates, but the Romans recognized the
necessity of a unitary executive that could act swiftly and decisively in times
of extreme crisis, if only for a brief period of time. The only person to serve in
this special constitutional role of dictus in Roman history was Lucius Quintus
Cincinnatus, a Roman statesman and aristocrat who had previously served as
counsel. Cincinnatus was elevated to the role of dictator in order to repel an
invading tribe, and, following a swift military victory, Cincinnatus relinquished
his authority, stepped down from the role of dictator, and returned to his life
as a farmer. Cincinnatus brief rule is often cited as a prime example of civic
virtue, but for political theorists like the late Clinton Rossiter, the Roman
consul was an historical antecedent for a successful constitutional
dictatorship.
If the Pew data is any indication, the American people are amenable to the
idea of a temporary dictus state in times when imminent danger comes to
the United States. But the whole goal of leaks in general, let alone Snowdens
leak, is to ensure that citizens dont become as habituated to the emergency
state as they have to terrorism, to rouse Americans from a period of
complacency to, somehow, recognize and rein in the emergency state when
the intelligence community cannot live up the the virtue and discipline of
Cincinnatus.

In his Political Theology (1922), Carl Schmitt (1888-1985) established the


essential proximity between the state of emergency and sovereignty. But
although his famous definition of the sovereign as "the one who can proclaim
a state of emergency" has been commented on many times, we still lack a
genuine theory of the state of emergency within public law. For legal theorists
as well as legal historians it seems as if the problem would be more of a
factual question than an authentic legal question.

2AC Agamben Wrong


Agamben exaggerates dystopian ideas are too
abstract and un-rationally justified
Mihkelsaar, Doctor of Philosophy, 2015 (Janar. degree of Doctor of
Philosophy, (PhD) in Philosophy in June 25, 2015 by the Council of the Institute of,
Philosophy and Semiotics, University of Tartu, Towards a Rethinking of Laclau and
Mouffe's Conception of "Social Antagonisms": Agamben's Critique of Relation.
Summer 2015.
http://search.proquest.com.proxy.lib.umich.edu/pqrl/docview/1695970830/fulltext/644
5A76C915F4D56PQ/2?accountid=14667)

the first displacement: the total


concentration of power. In reconstructing the juridicopolitical tradition of the West, Agamben reduces the
social bond to a rigid opposition between the "simple
fact of living" (zo) and "the form or way of living" (bios), natural
life and socio-political life.12 What, in fact, is at stake in these
oppositions is the limit type of relation of life and law.
The sovereign power, which decides on this nexus,
includes life within a juridical system by creating a
limit zone in which life and law, outside and inside,
pass through one another and become
indistinguishable. "Bare life" (nuda vita) that dwells in this
undecidable zone is the homo sacer, who "may be
killed and yet not sacrificed."13 The powerless bare life is at the mercy of the
Let us start with

all-powerful sovereign. "When a supreme will within the community," as Laclau asserts, "is not confronted

Agamben's analysis, which


assimilates "all situations of being outside the law to
that of homo sacer," is an abstraction that rests on
two unjustified presuppositions: firstly, that bare life
"is a naked individuality, dispossessed of any kind of
collective identity" and, secondly, that "the situation
of the outsider is one of radical indefension, wholly
exposed to the violence of those inside the city."15
Yet, these requirements are hardly, if ever, fulfilled.
Agamben exaggerates the extreme cases and ignores
the fact that sovereignty"can also be profoundly
democratic, if it involves an articulating rather than a
determining power-that is, when it 'empowers' the
underdog."16 Agamben's extreme idea of sovereignty
should be replaced by a conception of "hegemony"
by anything, politics necessarily disappears."14

that captures far better the complicated sociopolitical reality and its hidden emancipatory
possibilities. Let us proceed with the second displacement: the full elimination of power. In the
essay "ber den Begriff der Geschichte," Walter Benjamin's last major work, Benjamin states enigmatically
in the eighth thesis: "The tradition of the oppressed teaches us that the'state of exception' in which we live
is the rule."17 The exemplary space in which the internal principle of a juridico-political order is completely
materialized as the norm is a concentration camp, where life is "exposed to an unconditional capacity to
be killed."18 In the permanent state of exception, the operative principle of the juridico-political traditioni.e., the sovereign nexus between life and law embodied by homo sacer-comes into view.

Agamben draws a dystopian picture according to


which Western history, from its beginning in the
Greek polis, "represents the unavoidable advance
towards a totalitarian society."19 And the only
conceivable way out from this inhuman condition is to
"put an end to the civil war that divides the peoples
and cities of the earth"-that is, to eliminate political
power altogether.20 Agamben is captivated by "the
myth of a fully reconciled society" that does away
with all types of social divisions.21 The possibility of
politics, to sum up, is abolished when power is either
totally concentrated or, inversely, fully eliminated.

Agamben too pessimistic he misses the point -sovereignties have risen and fallen,
Behrman, Expert in Law and works of Giorgio Agamben, 13
(Simon. Law School from Birkbeck, University of London, LLB and MRes., published
work on refugee law, policing and the use of force, and the work of Giorgio Agamben.
In recent years he has presented his work at academic conferences in the UK, USA,
Colombia, Egypt, Australia, India and Turkey. In 2008-2009 he was an intern at the
NGO Rights Watch (UK)., research scholar at the John W. Kluge Center at the Library
of Congress, Washington D.C., studying the US Sanctuary Movement and the SansPapiers in France., research interests include: refugee law; legal history; legal theory,
particularly the works of Evgeny Pashukanis, Michel Foucault and Giorgio Agamben;
the inter-relationship between law and politics; the history of policing, and the law
governing the use of force., publishing and work for a mental health charity. He has
spent many years as a political activist, Giorgio Agamben in Perspective.
International Socialism. 10-7-13. http://isj.org.uk/giorgio-agamben-in-perspective/)

Agambens adoption of biopolitics involves a


significant break with Foucault in another direction, one that, in my opinion, is wholly
But

mistaken. In Foucaults historical framework biopolitics represents a decisive transformation that comes
with the advent of modernity. Therefore, Foucault is able to historicise its development as concomitant with

with the
homo sacer Agamben sees the roots of biopolitics
stretching back much further to the early Roman
Republic or even earlier. The legal historian Anton
the transformation from one social form (feudalism) to another (capitalism). But

Schtz makes the point succinctly: No way leads


back to a space without lawback to the homo non
sacer.27 In this pessimistic view, the prevailing forms
of dominance are not a historically contingent
phenomenon, but are rather deeply rooted in
humanitys distant past. Agambens genealogy, while
seductively erudite and revealing, appears to relegate
such epochal transformations as the collapse of the
Roman Empire, the Reformation and the French
Revolution to mere staging posts on sovereign
powers journey towards ever greater dominance.
This has the further effect of impressing upon the
reader the idea that humanitys past gives us no
precedent for successful resistance, much less the
destruction of sovereign power. To be sure, law and
the state are persistent forms of domination. But the
fact that quite distinct models of sovereignty have
arisen and then fallen or been smashed at various
times is missing in Agambens work. Andreas Kalyvas sharply and
accurately critiques Agambens historicism as an almost
totalistic, agentless history.28 Further: [Agamben] proposes
a theory of history that does not seem to bring forth
anything newan uninterrupted historical and philosophical continuity, embodied in the
survival of sovereignty over a period of 25 centuriessovereign biopolitics, Agamben implies, has
uninterruptedly accompanied the ancients and the moderns alike, remaining unaffected by critical events,
such as the birth of the ancient-Greek democratic citythe emergence of commercial capitalism, the
modern discovery of rights, the invention of constitutionalism, the democratic revolutions of the late 18th
century, and the entry of the labouring masses into politics.29 Yet just occasionally Agamben appears to
recognise the specificity of capitalist modernity in framing biopolitics. In the first volume of Homo Sacer,

Agamben describes the fundamental biopolitical


structure of modernity as one in which the decision
on the value (or non-value) of life as such is
central.30 This appears to be an acknowledgement of
the uniqueness in how power confronts life under
capitalismthat is, with a ruthless calculation of
value. As such, it is possible to glimpse a point at
which Marxism could be reconciled with Agambens
critique of sovereignty. Nonetheless, this remains, for
Agamben, an unexplored avenueone closed off by
the problems of his historiography. State of exception: The opening line
of Schmitts Political TheologySovereign is he who decides on the state of exception, which I quoted
earlieris a deceptively simple statement that exposes the liberal fiction of the rule of law as the antinomy
of the exception or the emergency situation. An idea deeply ingrained in Western capitalist democracies is
that the rule of law is the bulwark against barbarism, and systemic violence and oppression. Therefore,

states of exception are by their nature seen as unfortunate but temporary departures from this norm,
necessary only for the defence of the system that guarantees the rule of law in the first place. But this

. The
rule of law that grants powers to the sovereign
includes within those powers the right of the
sovereign to decide, in certain circumstances, that
the rule of law must be suspended. The declaration of
a state of emergency is an essential element in the
exercise of sovereign power because of this
inseparable relationship between law and exception.
circularity is, in fact, an accurate reflection of the relationship between norm and exception

Schmitt celebrates this aspect of sovereign power as necessary for ensuring stability in periods of crisis.31
It is not surprising therefore that Schmitt was to end up as a jurist in the service of the Nazi regime. What
is surprising is that at the time he wrote Political Theology, and throughout the 1920s, he was a staunch
defender of the liberal-democratic Weimar Republic. As Agamben shows, Schmitts ideological trajectory
had more consistency than is often recognised. For in the legal sense, the Nazi state was not the negation
of Weimar but its continuation in extremis. Article 48 of the Weimar constitution allowed for the complete
suspension of fundamental rights in situations where security and public order were threatened.
Hitlers government used this article repeatedly throughout its rule, regularly suspending the rule of law so
that the situation was reversed: the state of emergency became the norm, and the rule of law the
exception. Yet the rule of law was suspended by legal means, using powers granted under the constitution.
It was therefore a form of legal lawlessness.32 It is instructive to note, as Agamben does, that Article 48
was also used repeatedly by governments of the Weimar period to deal with the crises brought on by
economic collapse and the threat of revolution.33 Thus, in terms of using bourgeois law as a means of
extreme repression, the Nazis merely followed the example of the Weimar Republic. The fact that the path
of Nazi power ended in the unique violence of the Holocaust has obscured the extent to which fascist rule
could be facilitated by the rule of law. But today capitalist democracies routinely use their own versions of
the Weimar Constitutions Article 48, without a crisis of political legitimacy of the scale of the 1920s and,
thankfully, without so far ending up with fascism. Of course, the present circumstances are volatile and it is
difficult to predict what course things will take. What is different today is the relative stability and
consistency that has been maintained over a significant period of time under de facto states of emergency.
A theory of the state of exception, albeit one outlined in the vaguest of ways, is also found in the work of

Walter Benjamin. In the eighth of his Theses on the Philosophy of History he writes:
The tradition of the oppressed teaches us that the
state of emergency in which we live is not the
exception but the rule. We must attain to a
conception of history that is in keeping with this
insight. Then we shall clearly realise that it is our task
to bring about a real state of emergency.34 It is
clear what Agamben takes from this aphorism, and
also what he fails, or refuses, to take from it. Like Schmitt,
Benjamin identifies the state of emergency as
immanent to law. But he goes further by saying that the state of exception has itself
become the norm. This insight, so fundamental to Agambens work, is bookended by two things that
Agamben ignores. For the eighth thesis is not a mere description of a state of affairs, but a call to action
informed by the tradition of the oppressed for the introduction of a real state of emergency.

Benjamin appears to be making a distinction between


a pseudo emergency situation and what he refers
to as the real state of emergency. He is therefore
calling attention to the continuity between capitalist
democracy and dictatorship, and thus recognises the

necessity for transcending law to ensure true


liberation. Nowhere does Agamben ever discuss this
key component of Benjamins analysis, despite
repeatedly referring to this passage of Benjamins
throughout Homo Sacer. In Critique of Violence Benjamin writes: [the] legal
system tries to erect, in all areas where individual ends could be usefully pursued by violence, legal ends
that can only be realised by legal power.35 In other words, law forces all human relations to be processed
through its own peculiar form. This is something that Agamben too understands and discusses in various
ways in Homo Sacer. Benjamin then makes the distinction between the right to strike in specific
circumstances, and that of the general strike, which by its very nature goes beyond the realm of the legal
right to withdraw labour into a challenge to the authority of the capitalist state itself.36 Or put another
way, an action conferred by law becomes violent at the moment when it is exercised in order to
overthrow the legal system that has conferred it.37 The aspect of this piece on which most commentators
focus is the identification of two types of violence (there is a third, which I will come onto in a moment)
law-making and law-preserving. That is, violence used to create a legal entity, for example a revolution,
which leads to a new constitution or state; and violence deployed to preserve an existing state such as
police violence or a military coup. As such, all violence as a means, even in the most favourable case, is
implicated in the problematic nature of law itself. 38 The relevance of this idea for Homo Sacer is obvious.
In the same way that these two forms of violence are immanent to law, so too are the norm and the state
of exception. The idea that law can be counterposed to either violence or the state of exception is
redundant. Instead, as China Miville writes, the chaotic and bloody world around us is the rule of law.39

But in his engagement with Benjamin, Agamben once again


misses the transformative element. For in Benjamins
work the oscillation between law-making and lawpreserving violence can be transcended. The problem is that
Benjamins formulation throughout much of Critique of Violence is frustratingly allusive and
contradictory. For one thing it is not clear whether the type of transformative violence he advocates should
be called divine or pure violence, and whether the former is a positive thing or not. Benjamins use of
Old Testament and ancient Greek myths obscures the issue even further. However, in the conclusion to this
piece Benjamin does achieve a lucid exposition that falls absolutely within the classical Marxist tradition:
On the breaking of this cycle maintained by mythic forms of law, on the suspension of law with all the
forces on which it depends as they depend on it, finally therefore on the abolition of state power, a new
historical epoch is founded. If the rule of myth is broken occasionally in the present age, the coming age is
not so unimaginably remote that an attack on law is altogether futile. But if the existence of violence
outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary violence,
the highest manifestation of unalloyed violence by man, is possible, and by what means.40 It is telling that
Agamben quotes only up to the first sentence of this passage but no further and that he shies away at the
point at which Benjamin makes his clearest statement on the content of pure or revolutionary violence.
This leads Agamben, in common with most academic commentators on this text, to claim that Benjamins
pure violence is impossible to pin down. It is not. It is clearly stated to be revolutionary violence aimed
at the destruction of the rule of law. Admittedly, beyond this rather general statement Benjamin becomes
rather obscure. Nevertheless, it is not true that Benjamin offers no positive criterion for its
identification.41 Indeed, taken together with the other key text of Benjamins on which Agamben relies,
the eighth of the Theses on the Philosophy of History, which calls for the rupturing of the norm/exception
axis, it becomes clearer that pure violence is indeed that which breaks through the oscillation between

At this
point it is worth reflecting on the most significant gap
in Agambens work: the absence of engagement with
ideas about possible resistance to, or transcendence
of, the various manifestations of sovereign power. In
the norm and the exception that ground the rule of law. The absence of resistance:

Foucaults work, for example, struggle at all levels of society is often present and critical to the
development of the new forms of power that he identifies, and moreover he frequently recognises the

Much of Benjamins work,


certainly the texts that Agamben engages with, is
concerned with how the apparent catastrophes of the
underlying conflict that drives these changes.

modern age can be transcended. Agamben also stands apart from most of
the other celebrated critical thinkers of our time in this respect. Antonio Negri, Judith Butler, Alain Badiou,
Slavoj Zizek and Jacques Rancire all refer to concrete examples of resistance as well as being deeply

With Agamben, on the other hand, struggle is


almost wholly absent in his work, except occasionally
at the level of ideas. He never acknowledges anyone
anywhere in Western history struggling from below.
Instead we are presented with a history of kings and
clerics devising new forms of power, assisted by
theologians and philosophers. (Although, given Agambens idealistic
engaged with theories.

approach it sometimes appears the other way around where kings and popes merely assist the theologians
and philosophers in applying their ideas.) Agambens work therefore frequently offers a very pessimistic

The picture we are presented with is of a


sovereign power from which there is no discernable
means of escape. Reading Agamben, one often feels
as if this power resembles the Orwellian boot
stamping on a human faceforever. So while
Agambens description of bare life devastatingly
captures the lives of those at the margins of society,
what is missing in his work is an understanding of
how those groups have, even in the depths of the
Holocaust, resisted and fought back, and in doing so have resurrected
prognosis for humanity.

themselves as active political subjects.

No LinkAgambens ideas wont happen in the real world


and history wont repeat itself exactly the same way as
before
Gndodu, Assistant Professor at Columbia University, 11, (Ayten, Assistant

professor of Political Science at Bernard College at Columbia University, Potentialities of


human rights: Agamben and the narrative of fated necessity, July 19 th, 2011,
Contemporary Political Theory, http://www.palgravejournals.com/cpt/journal/v11/n1/full/cpt201045a.html#Agambens-Counternarrative-andthe-Problem-of-Mythologization)

Agamben's counternarrative becomes one of fated necessity as the


logic he attributes to sovereignty glosses over the ambivalences,
discontinuities and unpredictabilities of its history. In doing this, the
counternarrative cannot help but repeat, albeit unwittingly, the
distinctive gestures that Agamben associates with myth: What was
contingent seems as if it was necessary and inevitable. In the words of
Horkheimer and Adorno, who analyzed how an anti-mythical posture itself
can turn into myth, this barren wisdom merely reproduces the fantastic
doctrine it rejects: the sanction of fate which, through retribution, incessantly
reinstates what always was. Whatever may be different is made the same
(2002, p. 8). Only within the confines of Agamben's stringent logic, can any
politics organized around sovereignty and human rights not help but

reinscribe the originary violence repeated since the beginning of Western


political history. The imposition of such a logic, which ends up imputing a
preordained trajectory to any politics organized around sovereignty and
human rights, however, is at odds with Agamben's own efforts to understand
time and history in terms of inexhaustible potentialities. Indeed, Agamben's
notion of potentiality might help us break the binding spell of his own myth.

2AC Anarchy Bad


Anarchy causes war government and hegemony
checks
Kaplan, Chief Geopolitical Analyst and Senior Fellow at the
Center for a New American Security, 13 (Robert D. foreign correspondent
and contributing editor at The Atlantic, In 2009, he was appointed to the Pentagon's
Defense Policy Board, which advised former U.S. Secretary of Defense Robert Gates
on key issues, From 2006 to 2008, he was the Class of 1960 Distinguished Visiting
Professor in National Security at the U.S. Naval Academy. Anarchy and Hegemony.
Stratfor Global Intelligence. 4-17-13. https://www.stratfor.com/weekly/anarchy-andhegemony)
Everyone loves equality: equality of races, of ethnic groups, of sexual orientations, and so on. The problem is, however, that in

geopolitics equality usually does not work very well. For


centuries Europe had a rough equality between major states that is
often referred to as the balance-of-power system. And
that led to frequent wars. East Asia, by contrast, from the 14th to the early 19th centuries, had its
relations ordered by a tribute system in which China was roughly dominant. The result, according to political scientist David C. Kang of the

domination
of one sort or another, tyrannical or not, has a better
chance of preventing the outbreak of war than a
system in which no one is really in charge; where no
one is the top dog, so to speak. That is why Columbia
University's Kenneth Waltz, arguably America's preeminent realist, says that the opposite of "anarchy" is
not stability, but "hierarchy." Hierarchy eviscerates
equality; hierarchy implies that some are frankly
"more equal" than others, and it is this formal
inequality where someone, or some state or group,
has more authority and power than others that
prevents chaos. For it is inequality itself that often creates
the conditions for peace. Government is the most
common form of hierarchy . It is a government that monopolizes the use of violence in a given
geographical space, thereby preventing anarchy. To quote Thomas Hobbes , the 17th century English
philosopher, only where it is possible to punish the wicked
can right and wrong have any practical meaning, and
that requires "some coercive power." The best sort of
inequality is hegemony. Whereas primacy, as Kang explains, is about preponderance purely through
military or economic power, hegemony "involves legitimation and consensus." That is to say, hegemony is some
form of agreed-upon inequality, where the dominant
University of Southern California, was a generally more peaceful climate in Asia than in Europe. The fact is that

power is expected by others to lead. When a hegemon does not lead, it is acting
irresponsibly. Of course, hegemony has a bad reputation in media discourse.
But that is only because journalists are confused about the
terminology, even as they sanctimoniously judge previous historical eras by the strict standards of their own. In fact, for
most of human history, periods of relative peace have been the
product of hegemony of one sort or another. And for many periods, the reigning hegemonic or imperial
power was the most liberal, according to the standards of the age. Rome, Venice and Britain were usually more liberal than the forces
arranged against them. The empire of the Austrian Hapsburgs in Central and Eastern Europe often protected the rights of minorities and
prevented ethnic wars to a much greater degree than did the modern states that succeeded it. The Ottoman Empire in the Balkans and the
Middle East frequently did likewise. There are exceptions, of course, like Hapsburg Spain, with its combination of inquisition and conquest. But

hegemony does not require tyrannical or


absolutist rule. Stability is not the natural order of
things. In fact, history shows that stability such as it
exists is usually a function of imperial rule, which, in
turn, is a common form of hierarchy . To wit, there are few things messier in
the point is that

geopolitics than the demise of an empire. The collapse of the Hapsburgs, of the Ottoman Turks, of the Soviet Empire and the British Empire in
Asia and Africa led to chronic wars and upheavals. Some uncomprehending commentators remind us that all empires end badly. Of course
they do, but that is only after they have provided decades and centuries of relative peace. Obviously, not all empires are morally equivalent.
For example, the Austrian Hapsburgs were for their time infinitely more tolerant than the Soviet Communists. Indeed, had the Romanov
Dynasty in St. Petersburg not been replaced in 1917 by Lenin's Bolsheviks, Russia would likely have evolved far more humanely than it did
through the course of the 20th century. Therefore, I am saying only in a general sense is order preferable to disorder. (Though captivating
subtleties abound: For example, Napoleon betrayed the ideals of the French Revolution by creating an empire, but he also granted rights to
Jews and Protestants and created a system of merit over one of just birth and privilege.) In any case, such

order must

come from hierarchal domination. Indeed, from the end of World War II until very
recently, the United States has performed the role of a
hegemon in world politics. America may be democratic at home, but abroad it has been hegemonic.
That is, by some rough measure of international consent, it is America that has the responsibility
to lead. America formed NATO in Europe, even as its Navy and Air Force exercise preponderant power in the Pacific Basin. And
whenever there is a humanitarian catastrophe somewhere in the developing world, it is the United States that has been expected to organize

it would be a different, much


more anarchic world without American hegemony. But that
the response. Periodically, America has failed. But in general,

hegemony, in some aspects, seems to be on the wane. That is what makes this juncture in history unique. NATO is simply not what it used to
be. U.S. forces in the Pacific are perceived to be less all-powerful than in the past, as China tests U.S. hegemony in the region. But most
importantly, U.S. President Barack Obama is evolving a doctrine of surgical strikes against specific individuals combined with non-interference
or minimal interference in cases of regional disorder. Libya and Syria are cases in point. Gone, at least for the moment, are the days
when U.S. forces were at the ready to put a situation to rights in this country or that. When it comes to the Greater Middle East, Americans
seem to want protection on the cheap, and Obama is giving them that. We will kill a terrorist with a drone, but outside of limited numbers of
special operations forces there will be no boots on the ground for Libya, Syria or any other place. As for Iran, whatever the White House now
says, there is a perception that the administration would rather contain a nuclear Iran than launch a military strike to prevent Iran from going
nuclear. That, by itself, is unexceptional. Previous administrations have been quite averse to the use of force. In recent decades, it was only
George W. Bush and only in the aftermath of 9/11 who relished the concept of large-scale boots on the ground in a war of choice.
Nevertheless, something has shifted. In a world of strong states a world characterized by hierarchy, that is the United States often
enforced the rules of the road or competed with another hegemon, the Soviet Union, to do so. Such enforcement came in the form of robust
diplomacy, often backed by a threat to use military power. Richard Nixon, Ronald Reagan and George H.W. Bush were noted for American
leadership and an effective, sometimes ruthless foreign policy. Since the Cold War ended and Bill Clinton became president, American
leadership has often seemed to be either unserious, inexpertly and crudely applied or relatively absent. And this has transpired even as states
themselves in the Greater Middle East have become feebler. In other words, both the hegemon and the many states it influences are weaker.
Hierarchy is dissolving on all levels. Equality is now on the march in geopolitics: The American hegemon is less hegemonic, and within
individual countries Egypt, Syria, Libya, Iraq, Tunisia and so on internal forces are no longer subservient to the regime. (And states like
Turkey, Saudi Arabia and Pakistan are not in the American camp to the degree that they used to be, further weakening American hegemony.)
Moreover, the European Union as a political organizing principle is also weakening, even as the one-party state in China is under increasing
duress. Nevertheless, in the case of the Middle East, do not conflate chaos with democracy. Democracy itself implies an unequal, hierarchal
order, albeit one determined by voters. What we have in the Middle East cannot be democracy because almost nowhere is there a new and
sufficiently formalized hierarchy. No, what we have in many places in the Middle East is the weakening of central authority with no new

Unless some force can, against


considerable odds, reinstitute hierarchy be it an American hegemon acting
globally, or an international organization acting regionally or, say, an Egyptian military acting internally we will have
more fluidity, more equality and therefore more
hierarchy to adequately replace it.

anarchy to look forward to. This is profoundly


disturbing, because civilization abjures anarchy. In his novel
Billy Budd (1924), Herman Melville deeply laments the fact that even beauty itself must be
sacrificed for the maintenance of order. For without
order without hierarchy there is nothing.

SQuo world is an anarchic realm with each nationstate as an individual, pursuing interests freely war
between nation-states empirically prove anarchy bad
Politics and Metapolitics, 09 (Politics and Metapolitics. Political
science and literature blog, How Much Anarchy? 5/30/15.
https://arejaee.wordpress.com/2009/05/30/how-much-anarchy/)

An
international system exists; 2) The system is anarchic; 3)
States are sovereign and the primary units of the
system; 4) States seek power; and 5) States act rationally. While each claim
Realism and neorealism make five central claims about the international politics: 1)

complements the others, I believe that realisms understanding of anarchy is the nucleus of the traditions
analyses of interstate relations. In this essay, I explore the validity of the proposition that anarchy
determines the nature of state interactions in the system. Ultimately, I determine that realisms strict
definition of anarchy is a beneficial tool for understanding international relations in a broad historical sense

Anarchy exists in degrees of


intensity dependent on state behavior and the
orientation of the great powers. Here, I distinguish
two types of anarchy: hard and soft. I use the former
label to describe a state of more anarchy and the
latter to describe less anarchy. Of note, my use of the term realism in this
study encompasses the neorealist approach. For realists, anarchy is a product of
the multitude of sovereign states within the
international system. States are free to pursue
courses of action without any structural restraints.
Without a hierarchical structure providing rules for
state interaction, states are situated in relationships
of self-help and, consequently, are in direct
competition with one another to secure their national
interest defined as power. In the realist conception of
international politics, power is both an ends and a
means. The zero-sum game ignited by anarchy
compels states to act rationally, otherwise there is a
but deficient when analyzing the current era.

chance that a competitor will become more powerful


and, therefore, threaten anothers national interest.
Despite the omnipresence of rational-egoism in the system, cooperation is not absent from the realist
model. In fact, anarchy compels states to cooperate but only temporarily to enhance their interests.
Kenneth Waltzs defensive realism, which articulates the effects of anarchy on balance of power politics,

In order to protect
national interest, Waltz says, states will ally to negate
the ascending power of another. Once the power
equilibrium is restored, the allied states pursue their
interests independently, only to balance again in the
future when one state disrupts the distribution of
power.[1] International institutions do not play a role
in softening realisms anarchy because no
international body exists to extricate states from the
self-help principle. Basically, international institutions are a tool for enhancing national
explicates cooperations role in the realist framework.

interest against the welfare of other states. Thus, zero-sum competition is an enduring feature of the
international system. From the Treaty of Westphalias establishment of the nation-state as the primary unit
of international relations in 1648 to World War II, realisms anarchy offers a compelling longe duree
perspective of the motivations of states and interstate conflict. During that time, the insubstantial
information flows between nation-states exacerbated the question of other states policy intentions.
Realisms strict interpretation of anarchy, however, seems anachronistic considering the technological
advances of the mid- to late-twentieth century that connected nations and facilitated the integration of
national economies into the complex global economy. Contrary to the central assumption of neo-realism,
anarchy is not the sole determinant of state behavior in the modern era. One need only open the
newspaper for evidence that states are subject to formal and informal constraints. Liberal theorists like
Robert Keohane and Joseph Nye agree that the international system is anarchic but contend that
international economic institutions, though voluntary, reduce interstate tensions by linking economic
welfare a rational component of the national interest to stable and contention-minimizing relationships.
[2] In the liberal model, states are concerned with absolute gains instead of relative gains, thus
rationalizing anarchy as an opportunity instead of a burden. Institutions need not be located in brick and
mortar buildings; instead they can be norms widely accepted by the states in the international system. In
todays world, for example, virtually all states agree that war is only considered just if waged for
defensive purposes. By and large, the institution of just war restrains states from aggressively pursuing
military conquest. The question that then arises is whether the tempered anarchy of the twentieth century
is a temporary or permanent deviation from realisms rigid interpretation of anarchy. Some liberals insist

institutions, once formed, acquire a logic and


agenda separate from their constituent states; thus
becoming pseudo-sovereign agents in the
international system.[3] If this is the case, then a
system defined by soft anarchy may be a constant.
that

Another way to predict the degree of anarchy in the future is to question the effects of technological
progress through history. From steamboats and the telegraph to television and the Internet, human
innovation has created an increasingly interconnected and culturally homogenous world. As the globe
becomes smaller, institutions are utilized to mediate between disputant agents and formulate responses to

, anarchy may be
intensified by a myriad of factors ranging from
resource scarcity to violence perpetrated by nonstate actors. In todays world, it is not outlandish to
imagine a state attempting to protect its national
welfare from non-state militant groups by wantonly
the ills produced by the virtual elimination of spatial barriers. Conversely

violating the sovereignty of weak and/or unwilling


nations while disregarding formal and informal
international institutions. In this case, a system
marked by hard anarchy is likely to result. As demonstrated in the
paragraph above, predicting the future severity of anarchy is a tenuous task. One alternative model
examines anarchy as the product of vacillating norms of international society. In Anarchy is What States
Make of It, constructivist Alexander Wendt advises scholars of international relations to examine
processes of state interaction instead of focusing on the conditions of interaction. The degree of anarchy in
the system is determined, he says, by states identities as constructed by the interaction of an ego with
alters. In other words, at any one time the system can be more or less cooperative based on the

The soft anarchy defining the


current period of the international system can be
attributed to the unipolar dominance of the Untied
States and the states socialization vis--vis the
institution of a single great power. Great powers are informal institutions
socialization process of states.[4]

that play a substantial role in creating norms in the international system either through their interaction, as
in a multipolar system, or their unrivaled power, as in a unipolar system. In the former case, the system is
likely to be more anarchical. Yet, if a single superpower dominates the system and promotes the idea of
absolute gains, as the United States does, then a challenger or coalition of challengers is less likely to
emerge. In other words, a loose, non-obligatory order built upon common norms and understandings
simultaneously sustains anarchy but also provides structure. The degree of anarchy in a unipolar system,
though, is contingent upon the identity of the great power. An aggressive great power with a zero-sum
interpretation of interstate events will plunge system into a hard anarchy. In sum, as long as sovereign
states remain the primary actors in the international system, anarchy will remain as the structure
influencing states action. However, the system can at times be more or less anarchic. The realist and
liberal arguments concerning anarchy are both correct when situated within an appropriate context.
Constructivists process-centric analysis of international politics reconciles these two schools
understanding of anarchy. It accepts the idea that hard and soft anarchies are variant conditions of the
system dependent on states socialization. To understand the international systems structure of anarchy,
one must look at the dominant institutions mediating state interaction.

2AC Link Turn


Link Turn- Curtailing surveillance through the plan is key
to creating a new philosophy of law
Passavant, Associate Professor of Political Science at Hobart and William
Smith Colleges, 07, (Paul, The Contradictory State of Giorgio Agamben, April,
2007, Sage Publications, http://www.jstor.org/stable/pdf/20452544.pdf)

There are four implications of this critique for political theory and the state. First, the modem state is

The "state" encompasses a


variety of institutions, many of which predate modernity. The Foucauldian understanding
poorly understood as transcendent, unitary, and sovereign.

of government, I suggested, is the practice by which articulations between these institutions are forgedand non-state institutions are joined to this chain-and they are mobilized toward various purposes. The

plural nature of this ensemble is precisely what gives extension to the modem state. Second,

if
we treat the state as an ensemble of institutions, then the concept of a state
of emergency is poorly suited to understanding our political present .
Agamben rightly criticizes the USA PATRIOT Act in State of Exception. This law,
like most laws that are passed in an ongoing legal system, amends a
variety of other laws and sits on a foundation created by these other
laws, such as the Antiterrorism and Effective Death Penalty Act of 1996. The Antiterrorism Act created
the possibility of attributing guilt by association since it criminalized the provision of material support for
Political Theory organizations that the administration deems "terrorist"-provisions that the USA PATRIOT

From this perspective, current policies are less


"exceptional," unfortunately, and more a continuing development of a national security state
Act builds upon.

apparatus that has been built through legislation like the National Security Act of 1947, through discourse,

In other words,
another state formation is struggling to emerge through the ruin of
liberal democracy in the United States, and this emergence (and
ruin) is hastened by those who seek to enhance surveillance and
and through the creation of stakeholders (the military-industrial complex).

presidential powers, while diminishing the power of courts and legislative oversight as a
response to September 11, 2001.

Third, any social formation is constituted by elements of both


contingency and determination. By emphasizing pure potentiality,
Agamben misses this and either cherishes the excessive quality of
pure potentiality to the neglect of the exigent needs of the present,
or neglects how the active political subjects he does defend are
embedded within finite commitments that necessarily persevere
through the foreclosure of other possibilities. Some contemporary
political theorists concerned with injustice and the lack of democracy also
emphasize contingency, excess, and potentiality over determination, finitude,
and acts. These theorists correctly seek to disrupt oppressive patterns. Since
politics-hence political change-would not be possible under conditions of
absolute determination, emphasizing contingency or excess makes sense.
Yet reflection upon the retraction of certain state services from
places like the Bronx during the late 1970s permits us to see how
neither justice nor democracy is served by excessive economic
duress or violence. Not only are these contingencies unjust, but also
their incapacitating effects prevent democratic practices of
government where the latter necessarily presupposes some

collective capacity to direct and achieve collective purposes. State


actions that mitigate chaos, economic inequality, and violence, then,
potentially contribute to the improved justice of outcomes and
democracy. Political theorists must temper celebrating contingency with a
simultaneous consideration of the complicated relation that determination
has to democratic purposes. Fourth, the state's institutions are among
the few with the capacity to respond to the exigency of human
needs identified by political theorists. These actions will necessarily be
finite and less than wholly adequate, but responsibility may lie on the
side of acknowledging these limitations and seeking to redress what
is lacking in state action rather than calling for pure potentiality and
an end to the state. We may conclude that claims to justice or
democracy based on the wish to rid ourselves of the state once and
for all are like George W. Bush claiming to be an environmentalist
because he has proposed converting all of our cars so that they will
run on hydrogen. "Meanwhile, in the here and now, there are urgent
claims that demand finite acts that by definition will be both divisive
and less than what a situation demands. In the end, the state
remains. Let us defend this state of due process and equal
protection against its ruinous other.

2AC No Impact
No Impact- Were already living in a state of anarchy
Caplan, Professor of Economics at George Mason University 09, (Bryan,

Professor of Economics at George Mason University and blogger for EconLog,


My first book, The Myth of the Rational Voter, was named "the best political
book of the year" by the New York Time, currently working on my next book,
The Case Against Education. I've published in the New York Times,
Washington Post, Wall Street Journal, American Economic Review, Economic
Journal, Journal of Law and Economics, and Intelligence, and appeared on
20/20 and C-SPAN, Anarchist Theory FAQ or Instead of a FAQ, by a Man Too
Busy to Write One, June 18, 2009,
http://econfaculty.gmu.edu/bcaplan/anarfaq.htm)
Under anarchy, it is conceivable that e.g. a brutal gang might use its
superior might to coerce everyone else to do as they wish. With
nothing more powerful than the gang, there would (definitionally) be
nothing to stop them. But how does this differ from what we have
now? Governments rule because they have the might to maintain
their power; in short, because there is no superior agency to restrain
them. Hence, reason some critics of anarchism, the goal of anarchists is futile
because we are already in a state of anarchy.

2AC Reform Good


SQuo reform good k/t protecting constitutional rights and
democracy
Richards, Professor of Law at Washington University, 14 (Neil. M.
B.A. Washington University, J.D. University of Virginia, M.A. in Legal History from
University of Virginia, expert in fields of privacy, First Amendment, and information
law, co-director of Washington University-Cambridge University International Privacy
Law Conference and the Washington University Free Speech Conference, recipient of
the Washington University student bodys David M. Becker Professor of the Year
Award, specialized in appellate litigation and privacy law, former law clerk to Chief
Justice William H. Rehnquist, and Judge Paul V. Niemeyer of the United States Court of
Appeals for the Fourth Circuit, Hugo Black Fellow at the University of Alabama Law
School and a Temple Bar Fellow. Digital Laws Evolve. The Wired World In 2015. 1112-2014. http://poseidon01.ssrn.com/delivery.php?
ID=7590990991000760310220250790210910250230800340350490021060801060
670700910221100930050191061070321121
2410912411409511200103001506103707104908110202407003107411007006808
5019022120066067112108125099107010018113003075029108124102064095000
089006001115&EXT=pdf&TYPE=2 )

THE LAW HAS ALWAYS BEEN SLOW to keep up with


technology, but in 2015 we will see increasing regulation. Over the past
decade, as the web, social, mobile, cloud and big data
phases of the digital revolution have leapt forward,
regulators have been reluctant to intervene. After all, law can
be a blunt tool, and itisalltooeasyforevenwellmeaninglawmakerstoissuerulesthatlaterturnouttoberestrictive.But
as the scopeandscaleof the digital transformation has
become apparent, regulators have woken up.
Surveillance reform is on the agenda around the
world, and so is privacy law more generally,suchastherevisionof
theEUDataProtectionDirectiveandseriouseffortsatreformbytheWhiteHouse,theFederalTradeCommission,andotherpartsof
theUSgovernment.ThedecisionbyaSpanishcourtearlierthisyearrequiringGoogletofilteritssearchresultstoprotectprivacy
underwhatiscolloquiallyknownastherighttobeforgottenispartofthistrend.Butmorechangeisonthehorizon.

Surveillance law will adapt to include the cloud, and it


will no longer be acceptable for governments to use
we collected the data because it wasnt prohibited
or anything shared on the internet is fair game as a
viable excuse for intrusions into their citizens
privacy.Asbigdatapredictionsstarttoaffectmoreofourlives,wellseenewprotectionscomeintoforceagainst
discriminationbyalgorithm,whetherbysecurityservices,insurancecompaniesoremployers.Asthesensorenabledinternetof
thingspromisestoturneveryelectricaldevice(andquiteafewthatarent)intoadatacollectingnetworkedappliance,andassmart

well need rules for the data


that is collected: who owns it, for what purposes and
for how long? As long as technology was largely
watchesandwearabletechsuchasGoogleGlassproliferate,

confined to cyberspace, it was relatively easy to keep


things separate. But as our digital technologies
increasingly enter physical space, law will find itself
entangled in these new and important questions
whether itwants to be or not.Already,companiesarestartingtohirechiefprivacy
officersinrecordnumbers,andnewlawgraduatesthroughoutthewesternworldarefindingthatthehighgrowthareawithinlaw

cyberutopians argued that law had no place in our new digital


realm. But, as it turned out, laws were in fact necessary to
provide a basis for digital property and digital commerce; to
provide security from scammers and malicious hackers; and
for the redress of the many crimes and wrongs that would
inevitably occur as major chunks of human life migrated to
digital formats.Thebestexampleofthiswasintheareaofcopyright,whenperfect,costfreedigitalcopying
firmsisinitsprivacylawpractices.Wehaveseenthispatternbefore.Attheverydawnofthedigitalage,

threatenedthelongestablishedeconomicmodelofmanyoftheindustriesthatmakeculture:music,booksandfilm.Forawhile,we
staredintotheabyssofarevolutionaryNapsterandYouTubefuture,andthenwepragmaticallybackedaway,bringingcopyrightlaw

if law can
regulate copyright for the entertainment industries, it
can and should regulate data for everyone else.
And it will.As the digital revolution proceeds, were
realizing that we have a right to demand that privacy,
security, expression, equality and other values we
fought so hard to get built into the democratic society
of the twentieth century get built into the digital one
of the twenty-first. In 2015, these developments will
kick into high gear, and law will start to catch up with
technology.
intothedigitalrealm.Manyofusbelievethatcopyrightlawactuallywenttoofar,buttheclearlessonisthat

2AC State of Exception Good


Empirics prove- State of exception is used to fix the
problems with the law, not create new ones
Bull, Professor of the History of Ideas at Oxford, 04, (Malcolm, Malcolm Bull
is Professor of Art and the History of Ideas. He has spent his entire career at
Oxford, but has also spent periods elsewhere as a Getty Scholar and a Clark
Fellow, and as a visiting professor at the Courtauld Institute of Art and at
Complutense University of Madrid. In 2015 he will be Visiting Pilkington
Professor at Manchester, Malcolm Bull reviews State of Exception by Giorgio
Agamben, trans. Kevin Attell. Chicago, 104 pp, London Review of Books,
http://www.generation-online.org/p/fpagamben2.htm)
This distorts Agamben's argument at both a historical and a
theoretical level. Missing from his account of the state of exception
is any real acknowledgment that, in its modern form, a primary
function of the emergency has been to deal with strikes. In the United

Kingdom, the first Emergency Powers Act was passed in 1920 and used the following year
against the miners' strike; a state of emergency (which lasted eight months) was declared to
deal with the General Strike, and, most recently, during the Heath government, there were five

The symmetry between the strike


and the emergency is not just historical. In a strike, workers break
their contracts with a view to renegotiating them, then resuming
work. Like the state of exception, the strike is simultaneously within
the law and outside it. Yet unlike exceptions to the law, exceptions
to work can easily come about by accident, through the spread of
wildcat strikes or absenteeism. A formal state of exception may result. Livy
states of emergency, all in response to strikes.

mentions an occasion when a iustitium was declared because people had given up going to
work to participate in the Bacchanalia. (The 2 January Bank Holiday in Scotland is a more
recent example.) Who then decides the exception ?

In Agamben's work, the state


of exception produces outlaws, but if there are enough outlaws
there is effectively no law in any case. Instances such as this, in which the
government sanctions collective (in)action, are unusual. The state of exception is
more often used to suppress industrial action: an attempt to turn law into
violence in order to oppose the law-making violence of the strike. But Agamben gives
little indication that the state of exception is usually only one side of a social
confrontation, or that, rather than creating a void in the law, the
exception is often made in an attempt to close a space opened up by
someone else. According to Schmitt, 'in the exception the power of real life breaks
through the crust of mechanism that has become torpid by repetition.' Yet it is not the state of
exception itself that carries the power of real life so much as the crisis with which it attempts

The state of exception is, in itself, a


purely formal device which allows 'the state to exist even as the law
recedes', and provides a bridge across the abyss between two
moments of law. In this respect, the exception differs significantly from
constituent power and the political general strike, both of which have the
capacity to remake established legal and social frameworks. The ability to
revise existing norms is, as Machiavelli first recognised, just as important for
the survival of institutions as dictatorship, for while dictatorship only allows
norms to be preserved, reformation enables them to be renewed.
Dictatorship and renovation may both be precipitated by crisis, but whereas
to deal, or the crisis that it provokes.

the former is to be deployed as sparingly as possible, the latter is to be


encouraged, for institutions last longer if they retain the capacity to start
over. Agamben does not refer to this tradition of exception , but it has its own sacred
history. In the Jewish law, jubilees were years when normal working activities ceased, and the socially dead
were resuscitated - debtors given relief, slaves freed and the poor reunited with their property. Such
practices provided the model for the first attempted general strike, William Benbow's 'Grand National
Holiday', so named because 'a holiday signifies a holy day and ours is to be of holy days the most holy . . .
established to establish plenty, to abolish want, to render all men equal.' Unlike the state of exception,
when all men become homines sacri, on the holy day, when 'we shall legislate for all mankind', all men are
sovereign, and it is the body politic that becomes the defenceless homo sacer.

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