Emergencies are now a part of everyday life, with breaking news banners streaming across a variety of devices now widely available around the world, and with an increasing sense that the urgent clamor signals a world out of control. It is no surprise, then, that political leaders should wish to take extraordinary steps to indicate that they are in control, that there is a response underway, and that the nation and its citizens will be protected. Of course, skeptics see this as an opportunity for dictators and authority-inclined heads of state to consolidate power and frame their critics as the enemy, allowing for sometimes lethal means of eliminating them. Historically, such patterns have long been cataloged as resulting from wars, skirmishes, diseases, and droughtsâanything that could be mobilized and narrated as a threat to the state and a plot by enemies domestic and foreign. We should certainly recognize that emergency and security have been used to justify egregious violations of norms (from the abuses of colonial expansion to the paranoia of the witch trials) well before the current obsession with terrorism. But the twentieth-century rise of the liberal democratic orderâconsolidated in the United Nations systemâwas supposed to alter this dynamic. Self-determination and its corollary democratic representation were supposed to provide accountability and oversight against authoritarian power grabs. In the modern era, we supposed, the rise of the rights-protected individual, the citizen, would herald a new form of legitimacy that would temper the tendency for state authority to solidify power and to abuse it. Law, in the form of internationally recognized rights, would institutionalize processes of transparency and accountability to act as restraints. Liberal democracies were supposed to be different.
The current moment of multiple emergencies and new technologies allowing states to control and curtail citizen activity, as well as new ways for non-state actors to exert global violence and political influence, begs us to pause for a moment and closely examine what is happening under the emergency banner. Legal norms that are supposed to restrain state institutions are also designed to empower the responses of security institutions. Domestic law enforcement and international military security have traditionally been divided both conceptually and legally since they control separate spacesâinternal and external to the stateâand are invoked at different times and for different threats. But the effects of these two regimes have been increasingly blurred in responses to emergencies and this has accelerated since the response to the 9/11 attacks and the global institutions it created. Fundamental shifts in the powers of the state and the rights of the population have been creating effects that spread beyond borders and operate in new yet under-conceptualized space. While these practices were nominally in response to exceptional circumstances, they are continually being woven into a new baseline norm. The chapters in this volume explore the inter\national implications of exceptional legal and political efforts to protect states in the new security paradigm. With contributors from legal, academic, and practitioner sectors and from multiple countries, these chapters illustrate how the distinction between international and domestic (as well as between democratic and authoritarian) is falling away. The authors also examine, from multiple perspectives, how new security responsesâmaking use of the notion of the emergency or exceptional threatâdefine new political and legal spaces. Police become more militarized, soldiers become responsible for local order, and cyberspace becomes an increasingly contested form of virtual territory. These chapters investigate the consequences of these developments for the international legal and political system and for the future of liberal norms in international politics.
In organizing the chapters for this project, I found myself both incredibly fortunate to have found so many talented and informed contributors and also challenged to organize the chapters in a way that featured the development of the bookâs themes in a logical way. In the end, I decided that there was not a single correct answer to this challenge, and I put the work together intuitively. My own contribution kicks off the book with the piece that has seen many incarnations since I first began pointing out what I consider to be the oversight that Carl Schmitt relied on in making the case for the sovereign exception. I have presented the argument about the inertia (the irresistible anchor) of the exception at several conferences and many happy hours over the years. In its current form, it has become an inquiry into the future of democratic politics in the face of ascendant authoritarian power. The chapter interrogates the historical context for Schmittâs thinking, premised on a deep concern for order and for the coherence of the people in the face of external threats. Schmittâs view of the law was intricately bound up with his view of order, and he saw the power of the sovereign in the state of exception as power that enacted legitimacy through the sovereignâs assumed responsibility to maintain the state for the people.
In binding the fate of the law to the person of the sovereign though, I argue that Schmitt ignores the (obvious) temptation to suspend the law indefinitelyâor rather to suspend the law in ways that shift the baseline and dramatically alter the narrative about law and constitutional protections. The liberal democratic state is not immune from this dynamic and I bring forward a few illustrative cases (from a long list of choices) to bolster the argument. Additionally, liberal democracy is susceptible to accusations that it is too chaotic and polarized to be effective against global threats. Rather than punch combatively at liberalismâs easy target, I draw on political theorists such as William Rasch and Bonnie Honig to reframe democratic politics in ways that highlight the strengths of the diverse multitude. Having iterative contestations of ideas and actions allows great opportunity for corrective evolution of the social, political and legal spaces of the nation. Democracy is messy and uncomfortable, I argue, but it is also living, changing and capable of learning from mistakes. The politics of the multitude is better able to engage with and respond productively to the security threats of todayâs blurred spaces. In this sense, it provides a vital antidote to the stasis of Schmittâs sovereign.
Andreas Behnkeâs chapter picks up on the idea of new spaces with an analysis of the creation of âmeta-sovereign spaceâ generated by drone warfare. Since they can transcend traditional borders and sovereign spatial parameters, the use of drones in the Global War on Terror has created an exceptional space that has gone remarkably unnoticed, to the point of becoming routine. The use of drones has created a geopolitical space that expands the state of exception beyond the territorial boundaries of sovereign states. Behnke explores what this new âspatial ontologyâ means for the conduct of war and for the international order itself. In a further evolution of the imperial sovereign, this chapter describes a meta-sovereign that uses drones to colonize new frontiers where human beings that have been designated as terrorists can be hunted in ways that exceed the need for security, and without even the pretense of legal or political representation or inclusion. In looking closely at the practices of both the Obama and Trump administrations in the targeting and vetting of drone strikes, this chapter debunks some of the common assumptions about the benefits of drones such as their accuracy and claims of limited damage, as well as the comprehensive consideration and care of the curated target list.
By making personalized attacks much simpler and with low risk to US personnel, the use of drone strikes to kill individuals simply based on patterns of behaviorâsignature strikesâhas dramatically radicalized Foucaultâs notion of biopolitics, that is the stateâs management of human bodies and lives. Behnke concludes by suggesting that such violent biopolitics are better explained and understood as a new form of sovereigntyâmeta-sovereigntyâthat allows for a new form of the politics of the exception. What this might mean for a new global order remains to be seen, but Behnke reminds us that political interactions are never unidirectionalâthe subjects of the meta-sovereign are finding ways to act and to resist, leaving open the possibility of a new counternarrative to the exceptional space.
In the next chapter, PĂ„l Wrange considers cyberspace as the new location of the sovereign exception. Because it links civilian and military, and private and public activities so seamlessly, cyberspace has provided a new platform for the spatialization of exceptional activities, allowing states to flout old categories of law, war, and politics and challenging old understandings of sovereignty and territory. Wrange looks specifically into how statesâparticularly the USAâhave used intrusive hacking and cyber espionage in aggressive ways that can skim close to hostile warlike action without crossing over into belligerent status, thereby triggering reciprocal treatment and laws of war. Thus, cyberspace allows for multilayered cat and mouse games among state and non-state actors without the inconvenience of well-charted legal regulation. Without revealing identities and methods, cyberattacks can create physical effects or gain intelligence. Because the costs of such activities in cyberspace are dramatically lower than with traditional techniques, the number of actors capable of influencing global politics has expanded to include the entire population with access to the Internetâthus creating an unlimited (a-legal) space of exception.
Wrange focuses on what this means for the sovereign actor and how the activities of sovereigns in cyberspace are shaping international law. He notes that states have so far been anxious to avoid cyberactivity that crossed use of force thresholds in any obvious way but that the principle of non-intervention and respect for sovereign statehood still place many such actions under an evolving legal framework. Wrange analyzes in detail the main legal conflict between theorists who argue for a âsovereigntistâ perspectiveâthat sovereignty applies in cyberspace using a territorial analogy, and ânon-sovereigntistsâ who accommodate a more elastic view of cyber espionage as legal. Clashing efforts to define the cyber order have critical political and legal implications for the sovereign exception. As Wrange points out, cyberspace means that war may be everywhere and involve everyone even as we remain unaware of specific aggressive conduct, and the rights and protections of law have not yet followed or restrained the sovereign in cyberspace.
With the fifth chapter, the book turns to historical analysis and the overlapping of criminal and legal regimes in response to security threats. Norma Rossi looks at the spatial construction of anarchy and war inside the domestic space of the Italian state as it struggled to control the Sicilian mafia. Through her close look at historical and legislative documents and exceptional measures taken by the Italian parliament, Rossi shows how the logic of war has been inscribed on the Italian domestic space since its unification in the nineteenth century. This logic has allowed for an increasingly expanded militarization of the security narratives and practices of the Italian state. In the decade from the early 1980s to the early 1990s, the Italian parliament passed more than one hundred measures to address the âwarâ against the mafia. Rossi teases out how the parliamentary debates solidified the crime-fighting efforts as exceptional emergencies that justified a war-like stance and extraordinary powers. The killings of two Italian officials in mafia bombings served to legitimate the military analogy both in narratives and in terms of the powers then accorded to the security services. Sicily itself became an exceptional space of otherness within the sovereign Italian inside and allowed for historical references to barbarity and civilization from pre-unification days. Rossi points out that the mafia has been a recurring emergency for the Italian state since the days of its first formation, constituting a threat that forces the state into a defensive posture and precipitating a recurring narrative of the mafia as terrorizing that has worked in very similar ways to US counterterrorism narratives after 9/11. For the Italian state, the mafia is not a criminal organization, it is a radical threat to democratic values, an alternative political identity that presents an existential challenge to Italy. More recently, these narratives have been deployed against illegal immigration, allowing the Italian government to use its expanded security repertoire against migrants in the context of exceptional threats. Rossiâs chapter helps us understand that the utility of the emergency metaphor has been refined and re-used historically, and that the post-9/11 phenomena serve as yet another stage in its emerging utility.
Continuing on the theme of the exceptionalization of domestic law enforcement, Georgia Papadopoulos Holmerâs chapter looks at how the securitized sentencing practices for terrorist offenders in the USA have inhibited rehabilitation and resulted in counterproductive outcomes. Security is actually diminished, Holmer argues, when human rightsâincluding the right of rehabilitationâare denied to offenders in an exception to normal detention standards. This chapter looks closely at US counterterrorism legislation and how it has exacerbated the normalization of exceptional responses to the threat of terrorism. Broadly accepted international human rights standards unequivocally call for due process and respect for dignity of the accused in criminal and penal processes. Human rights as a guiding principle requires that detention practice includes rehabilitation and re-entry into society. Holmer traces the history of the rehabilitation concept in US criminal law and finds it to be well-rooted as best practice and reflective of American humanistic values. The âwar on terrorâ emergency has changed that commitment with a series of exceptional anti-terrorism measures that expanded Federal powers in defining and prosecuting terror crimesâdespite the existence of a robust legal framework before 9/11. This chapter describes the negative effects of overly harsh sentencing requirements and traces the efforts of reformers who have highlighted the uncalibrated nature of sentences as completely disconnected from the nature of the offenses and extent of support for terrorist activities and criminal background. Holmer argues that rehabilitating terrorism offenders is not just a necessary observance of commitment to human rights, but also an important component of sustainable responses to counterterrorism and national security due to dramatically reduced recidivism and reinforcement of the democratic values that terrorist groups are attempting to undermine.
In his chapter on anti-terrorism as neocolonialism, Uzair Kayani helps us understand that the current discourses and practices against terrorism have deep historic roots in British colonial practices in South Asia. In analyzing the extraordinary regimes developed to deal with rebellious regions in British India, Kayani demonstrates that these measures bear an eerie resemblance to current anti-terror measures. Most disturbingly, Kayani provides clear evidence that such emergency practices have counterproductive and lasting effects in actually providing security. Kayani explores how the precautionary principleâthe idea that preventive action should be taken when a potential unacceptable harm is plausibleâhas driven emergency measures in both Colonial India and contemporary anti-terrorism efforts. The problem with this approach is that it is based so heavily on speculation about what might happen, and this lack of information results in vaguely worded rationales for actions that would be problematic in ordinary circumstances. Further, these actions are difficult to critique because they are not clearly linked to evidence and information and they serve to aggravate fear, distrust, and reaction.
Kayaniâs chapter takes us through the adversarial center and periphery dynamics of pre-partition India and the ways in which the representation of the threat of frontier communities served the interests of the regime elites at the center. In a move that feels very familiar, the British colonial government created a regime of emergency lawsâthe Frontier Crimes Regulationâthat allowed for extreme measures in the treatment of frontier local populations and shielded enforcement officers from any complaints of torture. These measures were promulgated in an atmosphere where colonial populations were routinely referred to as âbarbarianâ and considered non-rule observant, thus allowing colonial administrators to have exemptions from their own rules that might have tempered official violence. Kayani then brings us forward to the current anti-terrorism regime and argues convincingly that the dynamics have not merely been repeated but that they have never really changed. Not only British colonial history, but also the history of slavery that perpetuated racism and prejudice in the USA, have created continual trails of discrimination and suspicion that have given way to racial profiling and increasingly militarized responses in law enforcement to respond to the threats of the other within. These limitations of civil, political, and economic rights of people in designated troublesome categories have actually not improved human security. Kayani urges us to separate these emergency practices from our national security concerns so we can more clearly assess how they affect us and the world order.
In âA Different Kind of New Normal,â Nadia Gerspacher fleshes out the problems with emergency measures that give extraordinary powers to police organizations. Such emergency practices have the effect of militarizing the approaches police officers use in their communities and create a sense of the population as harboring potential enemies rather than reinforcing collaboration and communication that can strengthen effective policing. Extended powers also encourage abuses as they occur amidst an atmosphere of emergency, fear, and panic, giving police the sense that they must err on the side of force rather than caution. Gerspacher argues that in addition to eroding important rights and freedoms, extended police powers can actually lessen effectiveness as communities withdraw their implied consent to be policed and refuse to cooperate with police they see as abusive or violent. Walking us through the examples of several national anti-terrorism regimes, including the USA, UK, Turkey, and France, Gerspacher lists longer custody periods, digital surveillance authority, and stop and search powers among the problematic responses by police organizations to perceived terrorist threats.
The problem with expanded powers and police discretionâin addition to the weakening of human rights normsâis that they are not accompanied by more robust training and rigorous doctrine on the use of police judgment in situations of conflict. When communities feel alienated, Gerspacher argues, the social contract that allows for effective policing is damaged and citizens see the police as a threat rather than a protective service. Political debates about identity and belonging, such as those precipitated in Europe by the refugee and migrant crisis, also worsen the effects of police abuses or misuses of discretion. Police need improved training about bias, and democracies must re-examine the effects of their emergency legislation as the consequences for local communities can be both hidden and extensive. Gerspacher reminds us that our response to terrorism is about ideas as much as it is about security and that we must not create bigger problems of mistrust in our communities by betraying our rule of law values and rights-oriented policing commitments.
Continuing our examination of the corrupting influence of extended powers in response to emergencies, Brittany Benowitz and Virginia Anderson look at the creation of specialized courts to try terrorism suspects. Such courts are meant to allow for special expertise and consistency in cases that can be challenging and fraught. However, specialized processes for a particular class of criminal cases often mean weakened due process rights and perverse incentives for justice sector actors to maximize convictions and sentences despite issues of evidence and transparency. Benowitz and Anderson review special courts in several countries, confirming the difficulty of maintaining human rights commitments while operating under exceptional rules. In particular, they look closely at Saudi Arabia and its Specialized Criminal Court. This Court was created in 2008 to try terrorism cases but operated for several years without statutes that clearly defined its jurisdiction or the crimes that it was supposedly handling. When the legal framework caught up to the court, human rights experts were concerned that the laws did not comply with international standards for criminal due process and the protection of human rights.
In the context of increasing terror attacks claimed by Al-Qaeda, Saudi authorities took steps to prove their commitment to counterterrorism efforts. This meant a large number of pro...