Giorgio Agamben - State Of Exception

1.2 One of the elements that make the state of exception so difficult to define is certainly its close relationship to civil war, insurrection, and resistance. Because civil war is the opposite of normal conditions, it lies in a zone of undecidability with respect to the state of exception,which is state powers immediate response to the most extreme internal conflicts. Thus, over the course of the twentieth century, we have been able to witness a paradoxical phenomenon that has been effectively defined as a legalcivilwar(Schnur1983).LetustakethecaseoftheNaziState.No sooner did Hitler take power (or, as we should perhaps more accurately say, no sooner was power given to him) than, on February 28, he proclaimed the Decree for the Protection of the People and the State, which suspended the articles of the Weimar Constitution concerning personal liberties. The decree was never repealed, so that from a juridical standpoint the entire Third Reich can be considered a state of exception that lasted twelve years. In this sense, modern totalitarianism can be defined as the establishment, by means of the state of exception, of a legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system. Since then, the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states, including so-called democratic ones.

Faced with the unstoppable progression of what has been called a global civil war, the state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics. This transformation of a provisional and exceptional measure into a technique of government threatens radically to alterin fact, has already palpably alteredthe structure and meaning of the traditional distinction between constitutional forms. Indeed, from this perspective, the state of exception appears as a threshold of indeterminacy between democracy and absolutism.

The expression global civil war appears in the same year (1963) in both Hannah Arendts On Revolution and Carl Schmitts Theory of the Partisan. However, as we will see, the distinction between a real state of exception (tat de sige effectif) and a fictitious state of exception (tat de sige fictif) goes back to French public law theory and was already clearly articulated in Theodor Reinachs book De ltat de sige. tude historique et juridique (1885), which is at the origins of the Schmittian and Benjaminian opposition between a real and a fictitious state of exception. Anglo-Saxon jurisprudence prefers to speak here of fancied emergency. For their part, Nazi jurists spoke openly of a gewollte Ausnahmezustand, a willed state of exception, for the sake of establishing the National Socialist State (Werner Spohr, quoted in Drobische and Wieland 1993, 28).

1.3 The immediately biopolitical significance of the state of exception as the original structure in which law encompasses living beings by means of its own suspension emerges clearly in the military order issued by the president of the United States on November 13, 2001, which authorized the indefinite detention and trial by military commissions (not to be confused with the military tribunals provided for by the law of war) of noncitizens suspected of involvement in terrorist activities.

The USA Patriot Act issued by the U.S. Senate on October 26, 2001, already allowed the attorney general to take into custody any alien suspected of activities that endangered the national security of the United States, but within seven days the alien had to be either released or charged with the violation of immigration laws or some other criminal offense. What is new about President Bushs order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply detainees, they are the object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight.The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews. As Judith Butler has effectively shown, in the detainee at Guantnamo, bare life reaches its maximum indeterminacy.