In 2005, the Italian political philosopher Giorgio Agamben published State of Exception as a response to the theories of Carl Schmitt and what he perceived as the jarring political events and violence taking place after September 11th, 2001. Agamben, a strong critic of former President George W. Bush’s administration, emphasized how the twentieth century saw a dramatic shift in the relationship between the legislative and executive powers in modern Western democracies. In an alarming passage, Agamben wrote:
The voluntary creation of a permanent state of emergency has become one of the essential practices of contemporary states, including so-called democratic ones.
Pointing to post-9/11 developments such as the Patriot Act, the prison at Guantanamo Bay, and the Bush Administration’s legal framework for enemy combatants in the United States, Agamben warned that the United States was coming dangerously close to joining the long list of European democracies that had willingly (albeit perhaps somewhat unconsciously) ceded total sovereignty to government executives.
For Agamben, exceptional circumstances were becoming “the dominant paradigm in contemporary politics,” which cut against the constitutional division of power colloquially known as “checks and balances.” Italy, Germany, France, and England had all suffered already. In America, the separation of powers theoretically protected against abuse. Congress held the purse and the power to declare war; the president executed directives as the president saw fit (within the boundaries of the law). But when exceptional circumstances arose and called for swift and decisive action, the chief positive attribute underlining the division of power, namely deliberation and reason, started to become secondary to the need for decision-making. Sometimes the tendency led to good results, such as in the case of President Lincoln instituting and applying the principle of equality to change the legal framework for the better. At other times, such as President Wilson’s legislative-executive powers during World War I and President Roosevelt’s administration of the economy during the Great Depression, the long-term consequences were more ambiguous (one of Agamben’s main points is that FDR’s presidency provides a perfect example of how once power goes to the executive it rarely comes back; considering how Social Security is considered the “third rail” by conventional political wisdom, he may be right).
Perhaps most importantly, Agamben noted how the case of the United States was most troubling because America remained the pre-eminent democratic republic and continued to be held as the model for newly-forming democracies. In other words, if America was losing its way, hope for the world was all but lost.
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Unlike Schmitt, Agamben did not believe that exceptional circumstances, involving extreme peril to the nation, destroyed the prevailing legal norms at the time. Rather, the exception is different from the norm in blurry way:
The state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.
In other words, exceptional circumstances are messy, often immediate and pressing, and require swift action. These issues cause otherwise protected democracies to locate decision-making in one individual, or a less-deliberative decision-making process. It’s also why Agamben recognized the individual as the link between the old norm and the exception:
The sovereign, who can decide on the state of exception, guarantees its anchorage to the juridical order.
But individuals are messy too, with political and personal decisions clouding their better moral and legal judgments in uniquely stressful and dangerous situations. And we all know where that can lead. The conclusion being that who are leaders are matters, a lot, especially in trying times that test the limits of our legal system, because severing the link between the normal legal regime and the exception leads to slippery slopes where moral judgments become very blurry. Which brings us to 2012 and President Obama’s role in the war on terror ten years after 9/11 and significant U.S. military involvement (and investment) in the Middle East.
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On May 29th, 2012, the New York Times published a story detailing President Obama’s role as the decider-in-chief when it comes to authorizing stealth attacks on alleged terrorists and terrorist camps all over the world. Some considered the timing of article to be politically suspicious; after all, it was close enough to the anniversary of the announcement of the death of Osama Bin Laden that some complained about the politicization of national security issues.
Yet after careful examination of the article, Americans may find themselves far more concerned with the precedent being set by the current president, especially in light of what was mentioned above. As the article stated:
Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical…When a rare opportunity for a drone strike at a top terrorist arises — but his family is with him — it is the president who has reserved to himself the final moral calculation.
In short, Mr. Obama decides who lives or dies on the “kill list” that his national security team presents to him. The list contains foreign nationals, enemy combatants, and yes, American citizens (who pose national security threats, as determined by the national security apparatus). And according to a White House memo, the executive branch’s internal (and extra judicial) deliberations surrounding an individual’s placement on the list–and whether his or her life may be taken–amount to due process under the American constitutional system (a notion that, while possibly not legally troubling for non-citizens, raises significant red flags for citizens).
The portrait portrayed Mr. Obama as taking total ownership of this issue and sometimes using the legal skills so lauded by his liberal advocates as the means to enable the very actions that those supporters doubt (such as acquiescing to a formula that minimizes the counting of civilian deaths by counting all military-aged males in a strike zone as enemy combatants). The mechanics of the “judicious” process are equally eye-opening:
It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.
This secret “nominations” process is an invention of the Obama administration, a grim debating society that vets the PowerPoint slides bearing the names, aliases and life stories of suspected members of Al Qaeda’s branch in Yemen or its allies in Somalia’s Shabab militia.
To top it off, the article repeatedly points to lines drawn by Mr. Obama–and then crossed by him at later dates. As Agamben intimated, precedents are dangerous.
To be fair, everything the article presented was not bad and reinforced Agamben’s underlying point about how who decides really matters if the exception is to remain tethered to the prevailing legal system. Mr. Obama seems at least aware of the moral implications, especially when children are involved. And his advisers, including John Brennan, seem to be generally respected as individuals of moral rectitude. But as Agamben mentions, what if the president did not recognize the moral and juridical implications but simply relied on the precedent to justify his or her action?
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If American presidential history proves anything, it is that precedents matter to presidents. Arthur Schlesinger’s seminal work on executive power, The Imperial Presidency, traces how each president built upon the layers of power established in the previous term in order to slowly expand the reach of the office far beyond the original intentions of the Founding Fathers. Fortunately, the strength of the American political system, and the general awareness of the public has prevented the system from tipping completely out of balance. But the need for a dynamic president, which has never been more apparent than in the post-9/11 world of Twitter, underwear bombs, and various never-seen-before forms of terrorism, has gripped the American public.
The Times‘ article points out the glaring truth about the War on Terror: it consistently demonstrates the indeterminacy of the law and its shortcomings when it comes to matters of national security, especially those involving individual enemies. The legal system consistently struggles to catch up with a list of constantly evolving threats that manifest themselves in various forms. This is why the moral questions are so important as well as the insight of philosophers like Agamben. If the law cannot provide an adequate solution in a Western democratic system, what will? As Agamben intimates, and the current practices of the Obama Administration indicate, the real question is who will, and better yet, how?
The takeaway is that the character of our leaders really matters-a lot. Moral principles-correctly grasped by the individual leader and used in the proper way-must fill this extra-juridical gap. The virtue of prudence-applying principles to the facts on the ground-cannot be forgotten. Otherwise, the result is something similar to the Schmittian nightmare where “he who decides is sovereign.” Allowing that would undermine the rule of law that is the very fabric of our constitutional system. It could make our legal system–and its boundaries–capable of being transgressed in the future by presidents who rely on precedents deemed legitimate because of history rather than the moral quality of the decisions that were made within (or begrudgingly outside of) our existing legal framework.
Modest Commentary 