Ethics and Global Affairs Term Paper

The Permanent State of Emergency: the Exception Becoming the Norm

Sean P. Maguire

Ethics and Global Affairs

Dr. Ariane Chebel d‟Appollonia

11 May 2015

Each morning millions of American children begin their school day by reciting the

pledge of allegiance. A daily reminder of the principles that their country holds dear: liberty and

justice for all. It is a daily echoing of the truths held self-evident by the nation‟s Founding

Fathers as evidenced by the Declaration of Independence: all men are created equal and endowed

with the inalienable rights of life, liberty, and the pursuit of happiness. In of itself this is an

innocent affair but the fact of the matter is that the America these children are pledging their

allegiance to no longer exists. The America of today is a radical departure from the

constitutionally based democracy its founders had intended. It has steadily departed from a form

of government based off the Constitution to a form of governance known as the permanent state

of emergency. The permanent state of emergency is a form of governance, I will argue, that

exists apart from the constitutionally grounded democracy our founding fathers intended. It has

existed since the beginning of the Cold War at the expense of the Constitution and in turn the

rights of the American people and subsequently presents a greater danger to America then the

emergencies that were used to usher in this state. I will argue my position through the lens of the

Paradox of Theseus‟ Ship, showing how America has been transformed from a constitutionally

based democracy, based off of the division of power and protection of rights, into the greatest

threat to the rights that the American government was founded on. I will show how throughout

American history this transformation has both gradually and expediently occurred and why this

transformation matters.

The paradox of Theseus‟ Ship, as told by the Greek historian Plutarch, reads as follows:

“The ship wherein Theseus and the youth of Athens returned from Crete had thirty oars, and was

preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away

the old planks as they decayed, putting in new and stronger timber in their places, in so much

that this ship became a standing example among the philosophers, for the logical question of

things that grow; one side holding that the ship remained the same, and the other contending that

it was not the same”1 My argument here is of the position that the ship is not the same; the

permanent state of emergency has so radically changed our form of governance that it is no

longer the same America which the emergency was declared to defend. Therefore the permanent

state of emergency should be dismantled as it only exists in the absence of the application of the

Constitution.

When speaking of the state of emergency, it would be prudent to recognize that we are in

actuality dealing with a state of exception. At its most base level, “exception” suggests a limit:

“on a rule to fulfill its mandate; on reason, to make sense; on logic, to be consistent with itself.

Concomitantly it suggests transcendence: the omnipresence of the ineffable, a lurking regime of

permanent negation. The exception is everything but: the non-law, the state of emergency, the

other, the negation of what-holds-in-all-circumstances…the exception describes the space where

law doesn‟t apply. The exception if fulfilled through non-application”.2 It is intended to be

understood as the unrepeated and unrepeatable.3 In our context, that which is not being applied,

the law which is not being upheld is the Constitution of the United States of America. The

Constitution of the United States is the document upon which the Republic was founded. Its

principles of governance find their patronage in the works of Locke, adhering to the notion that

law‟s ultimate protection rest in morality; that laws adhere to a system of justice, a commitment

to dignity and equal protection. Laws that do not do the people justice and defend liberty should

1 Plutarch. Theseus. http://classics.mit.edu/Plutarch/theseus.html

2 Rebecca Gould. Laws, Exceptions, Norms: Kierkegaard, Schmitt, and Benjamin on the Exception. Telos Spring

2013, 77. 3 Gould. Laws, Exceptions, Norms, 82.

be met with revolution.4 This was the case with the American Revolution and the establishing of

a constitutionally based democracy: the establishment of a government whose laws adhered to

this higher notion of morality. This higher notion, these liberties, would be made law by the

young republic‟s Constitution, thus ensuring a form of government that would uphold dignity

and equal protection.

Locke‟s tradition carries on a conceptualization of the law as it was understood by Plato.

Plato understood laws to be personal conscience merged with the social good; an established

framework for a balance of power, wherein moderation is stressed and the individuals welfare is

tied to the collective‟s well-being.5 This concept is evidenced by the inclusion of the Bill of

Right in the Constitution, a collective safeguard of our collective liberties to ensure that they

cannot be infringed upon against any individual by the government; while moderation could be

seen in the system of checks and balances as it was envisioned by the Founding Fathers.

Therefore, when we speak of exception in the American context we are discussing a departure

from the Constitution: a departure from the government safeguarding and upholding our

collective liberties.

Why would the government depart from the upholding of its founding principles? The

answer has already been provided for us by Gould: a state of emergency. This instance was of

such concern to the founding fathers that it was provisioned for in the Constitution. Article I of

the Constitution established the criteria for the suspension of rights, wherein “„[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

4 Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror. Princeton University Press, 2005, 43.

5 Gould. Laws, Exceptions, Norms, 78.

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 i (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‟ ”.6 Thus, in the American context, the government can

engage in the suspension of liberties in these certain stipulated instances where the public safety

may require it. However, the Constitution was ambiguous over which branch of government has

the authority to decide that the prerequisites for an emergency had been met and then engage in

the suspension of liberties. This ambiguity was the basis for the power grab by the executive

branch that has led the permanent state of emergency today.

Before we dig further into the state of exception and its permanent application in

America, we should step back and examine the state of exception/emergency further to gain

better understanding of why it is viewed as undesirable. Ignatieff raised several questions over

states of emergency in how they fundamentally challenge the rule of law that are as follows: if

laws can be abridged and liberties suspended in an emergency, what remains of their legitimacy

in times of peace; if laws are rules, and emergencies make exceptions to these rules, how can

their authority survive once exceptions are made; and what remains of the status of human rights

if they can be abridged in times of public danger?7 The answer is the permanent state of

emergency. Overtime the exception becomes the norm and the old norm is entirely replaced. The

6 Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press, 2005.Kindle Edition. Ch. 1.7.

7 Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 25.

conceptualization and justification of this transformation can be found in the works of the

Weimar legal theorist Carl Schmitt. Schmitt‟s transformation from framing the president as the

ultimate protector of the Constitution to becoming an apologist for Hitler is a stark example, but

it serves a purpose. It demonstrates how easy it is for the exception to become the norm once it is

made, how easy it is to continue the train of logic that supreme authority must rest solely in the

executive. Furthermore, Schmitt‟s justifications for the exception are the inherent arguments for

a state of emergency.

We have already established that a state of exception can be understood as a state of

emergency: a timeframe wherein the law does not apply. Schmitt provides us with the reasoning

for why a constitutionally based government would seek the non-application of the law. Broken

down, Schmitt provides governments with a very simple justification: the state of exception

separates the norm from its application in order to make its application possible.8 You must

break the rule in the moment in order to save it in the long term. Schmitt was writing in an

intense period of time; 1920s Weimar Germany, where the young constitutional democracy was

facing collapse at the hands of terrorist violence. Schmitt saw the government‟s ability to

respond to terrorist violence hampered by the constitution. For Schmitt, the exception was an

absolute necessity: constitutional regimes cannot hope to save themselves from attack unless

they withdraw protections from those who seek to do the constitution harm. However, in order to

justify the exception Schmitt did not view laws as Locke did. They were not absolutes, but the

outcomes of political agreements and as such enforcement of these laws was solely dependent on

the moment at hand. Rights should be suspended in times of emergency if they interfere with the

8 Agamben, Giorgio. State of Exception. Ch. 2.2.

overall survival of the government, as rights were only political agreements to begin with.9 It is

not entirely difficult to draw the parallels between what Schmitt was facing and that America is

facing today. Schmitt‟s slide from supporting expanded use of executive prerogative at the

expense of rights in times of emergency to outright defending Hitler highlight the absolute

danger that states of emergency present: once a constitutional order sacrifices its commitment to

liberty, it quickly sacrifices everything else.10

This is the case with the transformation that has

taken place in America: we sacrificed our commitment to liberty (the basis of our government)

and in turn gave over the system of checks and balances built to hold this commitment in place.

In turn it was replaced with the permanent state of emergency: governance through executive

prerogative and might equaling right, not rights prevailing over might.

The issues at hand with the state of emergency and the Constitution came to a headway

with the outbreak of the Civil War in 1861. While temporary in nature, the Civil War defined the

dangers of the permanent state of emergency and why it is antithetical to a constitutionally based

democracy. The outcome of the Civil War need be measured by more than the preservation of

the Union; it put to rest the ambiguity of Article I of the Constitution over where supreme

authority lies in states of emergency: the executive. From the very beginning of the Civil War,

President Lincoln expanded the use of executive prerogative far beyond its previously

established boundaries and made permanent gains for the power of the executive branch in times

of emergency. The two decisions of President Lincoln‟s that are the main takeaways from the

Civil War are the raising of an army without the approval of Congress and the suspension of

habeas corpus. On April 15th

, 1861 President Lincoln gave orders for the raising of an army of

seventy-five thousand men without the approval of Congress, an act running entirely counter to

9 Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 41-42.

10Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 43.

Article I of the Constitution. Congress did not convene until July 4th

of that year and during those

ten weeks President Lincoln held absolute authority over the actions of the United States

government. On April 27th

, President Lincoln selectively suspended habeas corpus between

Washington D.C. and Philadelphia. This action, once again, was taken without the approval of

Congress.11

By 1863, President Lincoln had suspended habeas corpus throughout the United

States and instituted indefinite detention for opponents of the war. In defense of his actions,

President Lincoln gave birth to the justification of the state of emergency in the American

context. Responding to his critics, President Lincoln argued that, “The Constitution is not, in its

application, in all respects the same, in case of rebellion or invasion involving the public safety,

as it is in time of profound peace and public security...I can [not] be persuaded that a particular

drug is not good medicine for a sick man, because it can be shown not to be good for a well

one…I am [not] able to believe that a man could contract so strong an appetite for emetics during

temporary illness as to persist in feeding upon them during the remainder of his healthful life”.12

In the face of the assumption of this supreme authority by President Lincoln, Congress did

nothing but give it legislative backing. President Lincoln claim of legality not being an issue in

the face on a pressing emergency was affirmed by Congress. This decision made it clear that in

time of emergency supreme authority would be given over to the executive branch and thus the

system of checks and balances that ensured the peoples‟ rights would be abandoned in the name

of security.13

However, this is not the only thing we should take away from the Civil War with

regards to the permanent state of emergency. President Lincoln and as submissive Congress not

11

Agamben, Giorgio. State of Exception. Ch. 1.7. 12

Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 27-28. 13

Agamben, Giorgio. State of Exception. Ch. 1.7.

only established the precedent of supreme authority during states of emergency being vested in

the executive, they established a precedent for what the executive prerogative was capable of in

times of emergency. Despite being proven right in the short run by the Supreme Court case of Ex

Parte Milligan in 1866, wherein the Supreme Court in uncompromising language condemned the

suspension of habeas corpus, President Lincoln‟s assessment of the appetite for his remedies

proved to be a false one. President Lincoln had established a permanent precedent for future

holders of the executive office to act upon; subsequently “when Roosevelt established a military

commission in 1942 to try German saboteurs and the case went to the Supreme Court for review,

Lincoln‟s use of military commissions was cited by the government in justification. When the

Bush administration established military tribunals to try terrorists and illegal combatants for

crimes of war and crimes against humanity, rather than putting them through the federal court

system, the Lincoln decision again figured as a precedent.”14

President Lincoln was the first

president to wield supreme authority and in doing so recognized its inherent dangers, but

juxtaposed against the collapse of the Union he viewed them as justified. Yet, this justification

lied on the notion of the return to peace, of the withdrawal of the exception and return to

repetition.

In the permanent state of emergency this is not the case, the exception becomes the norm.

The exception in the case of the United States is the selective application of the Constitution, the

document upon which the government is founded. If a government is to permanently detach

itself from its founding document can it truly be held to be the same form of government as it

was prior? Over the course of time, as the roots of the permanent state of emergency have grown

deeper and thicker, we have moved further from the constitutional democracy that this state of

14

Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 28-29.

emergency set out to defend to the point that there has been a break in the linkage and we must

view the current form of government as fundamentally different from the one established by the

Founding Fathers. This change did not happen overnight. Its roots begin in the ambiguity of the

wording of Article I of the Constitution; its applicability established by President Lincoln; and its

test run conducted by President Wilson in World War I.

President Wilson‟s actions during World War I are generally considered to have created a

proto- permanent emergency state during which President Wilson was given supreme authority

over the United States. The powers he assumed were far greater than those of President Lincoln.

Between 1917 and 1918, Congress legislated the extension of the prerogative of the executive

through a series of acts (starting with 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.”15

Deliberate decisions were made that undermined the Constitution and the peoples‟ civil

liberties at the enlargement of the executive‟s prerogative. These newly minted Alien and

Sedition Acts led to the, “criminaliz[ing] [of] legitimate foreign policy debate over the rights and

wrongs of the conflict. Magazines advocating peace or American neutrality were banned from

the mails. Hundreds of Americans were jailed for criticizing the war or opposing military

recruitment. Government spies infiltrated, raided, and ransacked the headquarters of antiwar and

15


antimilitary organizations.”16

Furthermore, the Trading with The Enemy Act greatly expanded

the prerogative of the executive into international commerce visa vi giving the President the

ability to restrict trade during times of war. In the long term this has led to a massive expansion

of the executive prerogative that would continue to be built upon and remains a permanent

feature to this day.

The actions of President Wilson after World War I relayed the fears of the detractors of

President Lincoln‟s actions quite bluntly. The continued usage of emergency powers laid bare

two concerns: their ability to be continually applied after the stated emergency that they were

enacted to deal with ended and the issue of self-prognosis. To borrow from President Lincoln‟s

analogy we can view the continued use of the executive prerogative after the end of a stated

emergency as a form of addiction. This is evident in the creation of the permanent state of

emergency but the inner working began to take place in President Wilson‟s attempt at a proto-

emergency state post-World War I. Many of the worst abuses of the Alien and Sedition Acts did

not manifest themselves until after the end of World War I. These laws, passed without the

sunset clauses defenders of states of emergency (such as Ignatieff) cling to, were used

relentlessly by the government in the Palmer Raids of 1919-1921. Invoking fears of a communist

revolution, thousands of immigrants and suspected radicals were arrested under the Alien and

Sedition Acts. However, Americans were still extremely wary of a permanent expansion of

government power at the time and Wilson‟s attempts at permanent expansion were summarily

put to an end. The Sedition Act was repealed in 1921 and President Coolidge, a strong critic of

the Palmer Raids, was elected in 1924 on a campaign of a return to normalcy.17

However, it took

16

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs (New York: The Penguin Press, 2012). Kindle Edition. Ch. 1. 17

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch. 1.

six years after the end of World War I for the emergency state to be put to rest. The waters had

been toed and it had been shown that a President could evoke a state of emergency during a time

of peace and expand their powers. World War I represented a break in continuity for America

going beyond the declared state of emergency: it broke a coherent foreign policy that America

does not abroad in search of monsters to destroy.18

In searching for monsters to destroy we find a

continued justification for the permanent state of emergency.

The Presidency of Franklin D. Roosevelt laid the building blocks for the permanent state

of emergency, greatly expanding the power of the presidency at the expense of the American

peoples‟ civil liberties and our shared history as a constitutional-democracy. President

Roosevelt‟s legacy would be built upon after his death by the actions of President Truman‟s

administration which institutionalized the permanent state of emergency and framed the world

through a security lens where near all authority need be invested in the executive. David C.

Unger refers to President Roosevelt as the godfather of the permanent state of emergency, a

moniker that I will demonstrate as entirely justified. President Roosevelt leaned heavily on the

tradition of war justifying an expansion in the executive‟s prerogative in his framing of his

administration‟s response to the Great Depression to justify his expansion of executive authority.

When he ascended to the Presidency in 1933, Roosevelt made it clearly known that he viewed

himself as a war-time president despite no declared war and that in the tradition of President

Lincoln he would do what he felt was necessary regardless of the approval of Congress.19

Supreme authority over the economy was vested in the Presidency, culminating with the

National Recovery Act of 1933, expanding the power of the presidency further then it had ever

reached during peace time. Viewed through the lens of the Constitution, this led to a redrawing

18

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch. 1. 19


of the boundaries of the division of power in the government, in which the executive had

successfully expanded its prerogative into previously demarcated areas of no entry.20

This

intrusion of the executive was not contained solely in its role in the market, but also through

expanded government surveillance of citizens and foreigners prior to World War II.

Prior to entry into the war, Roosevelt ordered the FBI to monitor those whom he deemed

“subversive”. This designation was determined solely by the executive branch and the

information was directed solely there as well, without any Congressional or judicial oversight.

Thus citizens were spied on by their government due to their usage of their First Amendment

rights. All of this was done under the pretext of the coming war, but like Adams before him

Roosevelt used the law to spy on and curtail the rights of his critics.21

Thus under the pretext of

an emergency President Roosevelt skirted the first and fourth amendment rights of his

opponents. The importance of this decision cannot be stressed enough as it demonstrates that

many of the practices that the general public is shocked to learn the government is engaging in

today have in fact been undertaken for decades. President Bush is the president most associated

with wiretaps and actions of that nature, but the practice began under Roosevelt, in peace time, in

the name of national security.22

Here we have a direct linkage over time of the permanent

emergency state: the executive assuming the authority to curtail individuals‟ fourth amendment

rights based off of their expression of their first amendment rights. A train of thought assumed

by a great deal of the general public to have begun in the aftermath of 9/11has had its roots in the

executive branch for decades and would be one of the prime abuses of executive prerogative

throughout the Cold War.

20




Thus, prior to the outbreak of World War II and the entry of the United States into the

conflict President Roosevelt had already begun to redefine the scope of both executive

prerogative and states of emergency. All of this was done at the expense of our civil liberties;

laying the groundwork for the subversion of our rights in the name of security. World War II

only accelerated this and allowed for a greater expansion of powers and abuses. The most noted

abuse is the massive detention of Japanese-Americans that took place during World War II.

President Roosevelt invoked his powers as commander in chief to create military areas anywhere

in the United States and to exclude whatever peoples he chose from those areas and relocate

them to military-run camps.23

Here again we see a train of thought running over the decades; we

can draw noticeable parallels between President Bush‟s actions of detaining thousands

immediately after 9/11 with the decision to intern Japanese-Americans after Pearl Harbor. A

breaking point is used to justify an action that would otherwise not be justifiable, but in the

established context the executive swoops into the crack and expands their authority. The

importance of precedence and replication in the permanent state of emergency cannot be stressed

enough.

World War II provided the ultimate context for the birthing of a permanent of emergency.

A “limited” national emergency, declared on September 8th

, 1939, became a permanent

emergency on May 27, 1941 all before the actual outbreak of war. Through his actions and

words during World War II President Roosevelt left no room for doubt of his belief that the

ultimate supreme authority to govern lies in the Presidency.24

However, President Roosevelt did

not live to see the actual creation of the permanent state of emergency which his actions had

seeded. That legacy would be left to President Truman in the aftermath of World War II.

23


Agamben, Giorgio. State of Exception. Ch. 1.7

President Truman built upon this legacy and in doing so framed and instituted the

permanent state of emergency, thus leading to a permanent capturing of the gains made in

executive authority by President Roosevelt. In his response to the changing world, President

Truman‟s, “decisions in these years created the peacetime emergency state. Unlike the wartime

emergency state, the peacetime variety has no logical termination, no moment when the

emergency clearly ends and normal constitutional procedures come back into force. A new,

security-based set of justifications for expanded presidential powers in peacetime was born.”25

President Truman‟s first action in creating the permanent emergency state was in actuality

inaction. By allowing many of the wartime emergency powers to remain on the books after

World War II emergency laws started to supersede the Constitution by the mere fact of their

continued existence. Indeed he allowed the actual declared state of emergency to continue until

1947. However, President Truman‟s main legacy in the creation of the permanent state of

emergency lies with the normalizing of certain emergency powers, the creation of institutions to

further realize these powers, and framing the permanent state of emergency in a way that was

acceptable to the American people.

I will first address the issue of framing, as it is the context that this decision established

that all other decisions flowed from. A new foreign policy approach was needed that recognized

America‟s new found role of hegemon in the western world. President Truman chose the path of

containment of the Soviet Union and communism and thus, in the tradition established by

President Wilson, America‟s foreign policy was one of absolute security based off of a perceived

foreign threat. The position established became known as the Truman Doctrine in 1947,

establishing “that the United States would provide political, military and economic assistance to

25


all democratic nations under threat from external or internal authoritarian forces. The Truman

Doctrine effectively reoriented U.S. foreign policy, away from its usual stance of withdrawal

from regional conflicts not directly involving the United States, to one of possible intervention in

faraway conflicts.”26

Our security parameter was now extended beyond our borders and our

security intrinsically tied to the state of world affairs. In order to meet these new broader set of

security concerns that justified the permanent state of emergency, new institutions needed to be

formed. The Central Intelligence Agency, the Defense Department, and the White House

National Security Council have all become pillars of the emergency state; all three were formed

in 1947.27

The Truman Doctrine and these three pillars would act as the guiding light for the

United States throughout the Cold war, with administrative adjustments along the way. Cold War

foreign policy would be determined by the executive, despite running contrary to the

Constitution which vests a majority of the common parameters of foreign policy in Congress.28

The Truman presidency established that American security would now be viewed in terms of

absolute security. The safety of the American people has always been one of the most powerful

conductors of national policy. This is not the concern at hand, as it is a recognized fact that this is

a responsibility a government commands. The concern comes with the degree of security,

security that trumps what is supposed to hold in all circumstances. Alexander Hamilton

recognized the inherent danger of viewing security in absolute terms, for in order “to be more

safe, [people] at length become willing to run the risk of being less free”.29

Thus when security is

viewed as an absolute, juxtaposed against freedom, absolute security requires the necessity of

being willing to sacrifice freedom in absolute terms as well.

26

The Truman Doctrine, 1947-1945—1952-Milestones-Office of the Historian. https://history.state.gov/milestones/1945-1952/truman-doctrine 27

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Introduction. 28

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch.3. 29

Hamilton, Alexander. The Federalist #8. http://www.constitution.org/fed/federa08.html

Throughout the Cold War the government continued to view security in relatively

absolute terms of the permanent emergency state. However, the executive was selective in the

flexing of its emergency powers. While holding supreme authority, it held true to a concept of

ethics of emergency more in tune with those postulated by Ignatieff in dealing with terrorist

states of emergency. When supreme authority was focused inward, at any one time, it was only

the infringement of relatively smaller groups‟ rights in the name of the security of the majority

that was taking place. This is much in line with the framing of powers in a terrorist state of

emergency.30

Taking away the rights of only a few at any one given time in the name of the

security of the many is much easier to justify. However, when we analyze the actions of the

executive branch throughout the Cold War we can see an established pattern: executive

prerogative being used without reference to the Constitution and infringing upon the rights of the

people. Spanning near half a century, a detailed analysis of Cold War abuses of executive

prerogative and the dismantling of our civil liberties is beyond the scope of this paper. Therefore

I will present several examples, out of the myriad, to highlight my position:

National Security Council document 68, NCS-68. This document detailed our

global strategy against communism, wherein any means justified the ends of

defeating communism. Actions were judged by their outcomes in this light, with

no regards given to the Constitution. NCS-68 would supersede the Constitution

as the guiding document of the government during the Cold War, thus proving

the permanent state of emergency to be a different form of government.31

30

Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 32. 31


President Truman‟s bypassing Congress and the Constitution to engage in the

Korean War by labeling it a presidential “police action”. 32

The CIA engaging and aiding in the overthrow of the government of Iran in 1953

and the government of Guatemala in 1954, without any Congressional

oversight.33

The use of The Tonkin Gulf Resolution by Presidents Johnson and Nixon to

engage in years of warfare in Vietnam, despite no constitutionally declared war.

The President was vested with the authority to defend against all aggression. The

presidency was recognized as holding supreme authority by Congress and thus

was granted the ability to wage war from solely within the executive office.34

President Johnson‟s use of the FBI for domestic spying on political opponents,

including Martin Luther King Jr. Once again a disregarding of fourth amendment

rights due to one‟s use of their first amendment rights.35

The use of the CIA, most notably under the Nixon Administration, for domestic

spying on Americans.36

President Reagan‟s ignoring of article 2, section 3 of the Constitution “to take

care that the laws are faithfully executed” by engaging in the Iran-Contra affair

by refusing to abide by the laws passed by Congress on the matter.37

These are only several examples of the litany of abuses that took place throughout the

Cold War. What is interesting in many cases is that Congress either approved of the use of

32


Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch. 4 34





executive prerogative or refused to adequately challenge it. With each case, the notion that

supreme authority in times of emergency belongs to the executive was enhanced. This supreme

authority was at the expense of the system of checks and balances. The system of checks and

balances was put in place to ensure the upholding of the Constitution. However, with the advent

of the Cold War the upholding of the Constitution was no longer the stated goal of the

government: the defeat of communism was. The Constitution would be held up when applicable,

but would no longer be referenced to determine what actions could be taken. The abandoning of

the Constitution as the guiding light of governance for near half a century demonstrates the clear

break between the government that was envisioned and the government in reality, the permanent

state of emergency.

With the collapse of the Soviet Union, the rational for the permanent state of emergency

no longer existed and yet the security state remained. New monsters were sought in order to

justify the permanent state of emergency and the continuation of supreme authority. Communism

may have been defeated but our first “peace-time” President in near half a century, President H.

W. Bush, declared that “even in a world where democracy and freedom have made great gains,

threats remain. Terrorism. Hostage-taking. Renegade regimes and unpredictable rulers— new

sources of instability— all require a strong and engaged America”.38

Despite lasting for

practically half a century, the Cold War was still framed with a constraint in mind: the defeat of

communism. President Bush‟s rhetoric laid bare one of the greatest fears of states of emergency;

temporary suspension have a way of becoming permanent. Measures introduced for one reason

are now used for another. The state of emergency acts as a widening wedge that finds

38


justification for its actions itself. It seeks its own monsters to destroy.39

Thus the state of

emergency was no longer tied to the threat of communism, but simply threats to America‟s

security in general. These threats were realized on the morning of September 11th

, 2001.

The War on Terror continues the long tradition of invoking war to justify an expansion of

the executive‟s authority and subsequently a decrease in civil liberties. In continuously referring

to himself as the Commander in Chief of the Army post 9/11, President Bush was making

continuous references to Presidential claims of expanded sovereign power and in turn the state of

exception that justifies this expanded power. As such, President Bush sought to normalize the

exception and have the assumption of more sovereign powers permanently shifted to the

executive.40

This expansion of power was manifested most notably in the cases of indefinite

detention/suspension of habeas corpus, the expansion of government surveillance, and

throughout all of this the dismantling of the systems of checks and balances. I will argue here

that the government‟s response, as it has been throughout the entire permanent state of

emergency, has continued the subversion of the Constitution as the basis for the United States

government. However, the expansion of the executive‟s prerogative has been more controversial

than prior expansions. Since 9/11, the government has been operating under the notion of a

terrorist state of emergency, wherein a response would entail: preventive or investigative

detention for certain detainees; changes in their right of access to counsel and lawyer-client

privilege; widening of police powers of search and seizure; increased wiretap authorizations and

other forms of surveillance.41

However, the government has abandoned the selective use of the

executive prerogative in the permanent state of emergency during the War on Terror. In doing so

39

Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 30. 40

Agamben, Giorgio. State of Exception. Ch. 1.7 41

Ignatieff, Michael. Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 26.

it has demonstrated the full capability of supreme authority vested in the executive in times of

emergency. It has shown that it is not the rights of the few versus the security of the many, but

the ugly truth that the rights of every man fall into the black-hole of the state of exception. My

reasoning is based off of two points of agreement with Ariane Chebel d‟Appollonia: the

definition of the “others” whose civil liberties are being forfeited has expanded rapidly to include

every citizen of the United States and the fact that the War on Terror is characterized in an

unending manner implies that these rights will be forfeited in perpetuity.42

The War on Terror, guided by what has been called the Bush Doctrine, is best viewed as

a 21st Century rephrasing of the Truman Doctrine; the old monster had been vanquished and a

new one was needed in its place. The Bush Doctrine, as outlined by the administration‟s first

National Strategy for Homeland Security, listed several key strategic objectives that would guide

the administration‟s policy: preventing terrorist attacks within the United States, reducing

America‟s vulnerability to terrorism, and minimizing the damage from attacks that could

occur.43

Taken with President Bush‟s continuous self-references to the military commanding

nature of his job, what we have seen is the reiteration of security is as the number one objective

of the President. However, this begs the question of security from what exactly? There can be no

decisive moment or victory day when you are fighting an informal, or in actuality a series of

informal conflicts. Compared against previous conflicts the War on Terror offers “no comparable

prospect of victory, no conclusion, and [most importantly] no comparable restoration of

rights.”44

The questions raised by Ignatieff over the ethics of emergency need not be raised as

there is no post-emergency period in which to observe the outcomes of these questions, as the

42

Chebel d’Appollonia, Ariane. Frontiers of Fear: Immigration and Insecurity in the United States and Europe. Cornell University Press, 2012. Kindle Edition. Conclusion. 43

Chebel d’Appollonia, Ariane. Frontiers of Fear. Ch. 3. 44

Chebel d’Appollonia, Ariane. Frontiers of Fear. Conclusion.

exception of emergency has become the norm and the upholding of our rights(visa vi the

Constitution) is permanently abandoned as the guiding principle of governance.

Addressing the nation after the attacks of 9/11, President Bush declared war not on Al-

Qaeda, but on the tactic of terror itself.45

What we have is actuality is a series of distinct and

isolated conflicts presented to the public as one continuous war, thus fulfilling the requirements

for a state of emergency.46

As the end of the conflict is continuously perceived to be beyond the

sunset, the measures enacted to deal with the conflict push beyond the sunset as well. The

continued renewal of the Patriot Act is the prime example of this issue.

The Patriot Act was implemented on October 26th

, 2001 and renewed by President

Obama on May 27th

, 2011. The law was passed in response to the terrorist attacks which took

place on 9/11, vesting greater authority in the federal government to respond and defend against

further terrorist attacks. Viewing the attacks and the subsequent War on Terror as a break in

continuity, the Patriot Act in conjunction with several other government programs sought to

expand the power of the federal government and the executive prerogative into this break. The

Patriot Act was able to be passed so quickly for two reasons: it was essentially a repackaging of

wish-lists of several government agencies, which has been turned down when presented

individually and the 1996 Antiterrorism and Effective Death Penalty Act gave the government a

framework which to work upon.47

A complete overview of the new found powers granted by the

Patriot Act is beyond the scope of this paper as they are far too extensive to list in detail.

However, a brief examination of only several sections is needed to understand why the Patriot

45

Bellamy, Alex J. Fighting Terror: Ethical Dilemmas. London: Zed Books, 2008. 50 46

Bellamy, Alex J. Fighting Terror. 70 47

Chebel d’Appollonia, Ariane. Frontiers of Fear. Ch. 3.

Act, acting as a microcosm of the permanent state of emergency, presents such a danger to

constitutional democracy:

Section 206: The “roving John Doe wiretap provision”, which allows the

government to obtain intelligence surveillance orders without identifying anything

in the investigation. This runs contrary to the traditional, as well as legal norms,

that require the government to specifically state whom they are investigating and

for what purpose.

Section 215: the government is authorized to obtain any “tangible thing” in

relation to a terrorism investigation. There is no longer a need to show probable or

even have a reason of suspicion. The government can investigate you based off of

your use of your First Amendment rights. Furthermore, you are never notified you

are being investigated, nor can someone forced to handover information announce

that they have done so.48

Section 213: Permanently established the ability of the FBI to engage in “sneak

and peak” tactics. The FBI is authorized to enter an empty building, take photos,

and install “magic lanterns”, a digital espionage device installed on hard drives

which records all computer activity. As of the beginning of 2005, it had been used

153 times, with only cases involving terrorism.49

Section 505: The FBI need only declare that a National Security Letter (NSL) is

pertinent to an investigation involving terrorism to bypass authorization by a

judge. These letters subpoena practically all personal information of an individual

48

Surveillance Under the USA PATRIOT Act (American Civil Liberties Union) https://www.aclu.org/surveillance-under-usa-patriot-act 49

Surveillance Under the USA PATRIOT Act (American Civil Liberties Union) https://www.aclu.org/surveillance-under-usa-patriot-act

and were originally only intended to be used for counter-espionage against an

agent of a foreign power. Now they can be used by the FBI for near all criminal

activity and as of 2005 the FBI had issued 30,000 NSLs per year since 9/11. Once

again recipients of NSLs are barred from speaking about them, infringing upon

their First and Fourth Amendment rights.50

The Patriot act has acted as a lightning rod for criticism of government over reach. This

criticism is exceptionally warranted as the Patriot Act has dismantled many of the systems of

checks and balances, replacing them with a now legally enshrined assumption of greater

authority by the executive. Beyond its stated intent, the Patriot Act points to a rupture that had

occurred. The rupture in question was 9/11 and the introduction of the Patriot Act is the most

obvious example of establishing a boundary of before and after. We focus heavily on the Patriot

Act due to its continuous renewal as well, despite moving further and further from 9/11. In the

Patriot Act and its renewal we find the fear of our Founding Fathers personified: the exception

becomes the rule; with its renewal, the temporary becomes permanent.51

Roughly a month after the passing of the Patriot Act, President Bush laid out in detail

another hallmark of the permanent state of emergency: indefinite detention. On November 12,

2001 President Bush authorized the indefinite detention of and trial by “military commissions”

of non-citizens engaged in terrorist activities. The order built upon powers given to the Attorney

General only a month earlier by the Patriot Act to arrest any alien involved in terrorism. The

radical departure from the previously held norms was that, “it radically erases any legal status of

the individual, thus producing a legally unnamable and unclassifiable being. Not only do the

50

Jean-Claude Paye. From the State of Emergency to the Permanent State of Exception. Telos Fall 2006. 154. 51

Jean-Claude Paye. From the State of Emergency to the Permanent State of Exception. 155.

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.”52

Guantanamo Bay was deliberately chosen by the administration, the argument being

that being designated as unlawful combatants took away the prisoners‟ rights under the Geneva

Convention, while being held on “no-man‟s land” allowed the government to deny the detainees

the right of habeas corpus. The War on Terror has in essence given the President the power to

give people life sentences without trial. This power has been reinforced by the yearly passage of

the National Defense Authorization Act, which contains a provision explicitly giving the

executive the prerogative to hold prisoners indefinitely.53

The government‟s response in the War on Terror has thoroughly demonstrated what the

full applicability of supreme authority during a state of emergency entails. For most Americans,

the most shocking use of authority was with regards to the revelations brought forward by

Edward Snowden about NSA domestic spying. The revelations have been massive and once

again a full evaluation is beyond the scope of this paper. A quick overview shows us: that the

NSA has been collecting the details of every American‟s calling data without warrants; has real

time access to all phone and internet traffic; and has collected and stored the data from roughly

52


President Obama Signs Indefinite Detention Bill Into Law (American Civil Liberties Union) https://www.aclu.org/news/president-obama-signs-indefinite-detention-bill-law?redirect=national-security/president-obama-signs-indefinite-detention-bill-law

twenty trillion transactions.54

For many Americans this is the first real instance of the permanent

state of emergency reaching out and touching them. It is demonstrable evidence of the blurring

of the lines between the supposed tradeoff of minority rights versus the majority‟s security. It

demonstrated that absolute security as dictated by the permanent state of emergency demands an

ability to absolutely dismiss the rights of every citizen. All of this has been done, until recently,

once again without any real judicial or congressional oversight. Operating under the prerogative

of the executive the NSA was given free roam to operate and has been the case throughout the

permanent state of emergency broadened the scope of the executive‟s prerogative at the expense

of Constitutional liberties. In essence, between the NSA‟s operations and the Patriot Act, the

right to privacy has been abolished, swept aside and replaced with executive prerogative.

Since the end of World War II and the advent of the Cold War, America has found itself

in a permanent state of emergency. This permanent state of emergency can only exist due to the

non-application of the laws of the Constitution, the basis of the United States government.

Throughout my paper I have demonstrated how the permanent state of emergency negates the

rights upheld in the Constitution and the governance system of checks and balances established

to ensure the upholding of these rights. The permanent state of emergency existence being

enabled only through non-application of the Constitution presents it as the greatest threat to

America, wherein we understand the America being defended as a constitutionally based

democracy. Of course this issue exists in the paradox where the state of emergency exists to

protect the constitutionally based order. The exception is justified in the moment on the pretense

that it will serve the survival of the norm in the long run. This is the devil‟s advocate position on

the state of emergency, with the most pertinent example being President Lincoln‟s actions during

54

How the NSA’s Domestic Spying Program Works (Electronic Frontier Foundation) https://www.eff.org/nsa-spying/how-it-works

the Civil War. However, even in the most justified example we have found evidence of the

danger of precedence being set. Precedence has dismantled the system of checks and balances

and invested supreme authority over application of the Constitution solely in the executive

branch. America‟s territorial integrity may have been preserved throughout the permanent state

of emergency, but at the expense of replacing a constitutionally based state with a permanent

state of emergency and replacing a system of checks and balances with a system of supreme

authority resting in the executive. America must return to the repetition of the Constitution and

reason or face a future of governance through fear and uncertainty as government policy is

decided in the moment, without regards to the idea of inalienable rights that our nation was

founded upon. A fully fleshed out answer to the problem of the permanent state of emergency is

beyond the scope of this paper. However, the author recognizes that we must start with its

dismantling and the reinstating of the Constitution as the highest law in the land.

Works Cited

Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press,

2005.Kindle Edition.

Bellamy, Alex J. Fighting Terror: Ethical Dilemmas. London: Zed Books, 2008.

Chebel d‟Appollonia, Ariane. Frontiers of Fear: Immigration and Insecurity in the

United States and Europe. Cornell University Press, 2012. Kindle Edition.

Gould, Rebecca. Laws, Exceptions, Norms: Kierkegaard, Schmitt, and Benjamin on the

Exception. Telos Spring 2013

Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror. Princeton University

Press, 2005

Paye, Jean-Claude. From the State of Emergency to the Permanent State of Exception.

Telos Fall 2006.

Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All

Costs (New York: The Penguin Press, 2012). Kindle Edition.

Hamilton, Alexander. The Federalist #8. http://www.constitution.org/fed/federa08.html

Plutarch. Theseus. http://classics.mit.edu/Plutarch/theseus.html

How the NSA‟s Domestic Spying Program Works (Electronic Frontier Foundation)

https://www.eff.org/nsa-spying/how-it-works

President Obama Signs Indefinite Detention Bill Into Law (American Civil Liberties Union)

https://www.aclu.org/news/president-obama-signs-indefinite-detention-bill-

law?redirect=national-security/president-obama-signs-indefinite-detention-bill-law

Surveillance Under the USA PATRIOT Act (American Civil Liberties Union)

https://www.aclu.org/surveillance-under-usa-patriot-act

The Truman Doctrine, 1947-1945—1952-Milestones-Office of the Historian.

https://history.state.gov/milestones/1945-1952/truman-doctrine

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Ethics and Global Affairs Term Paper