#wb10 - Merve Unsal - TRY » sovereignty

A Prison of Words

munsal — Sun, 26 Jul 2009 21:54:39 +0000

March 19, 2009

New York Times

Noah Feldman

Cambridge, Mass.

Has the Obama administration changed the legal rules for detaining suspects in the war on terrorism, or is it continuing in the footsteps of the Bush administration?

We got a clue last week when the Justice Department filed an important document “refining” the government’s position in lawsuits over those held at Guantánamo Bay. Hailed by supporters as a leap forward, yet criticized by human rights groups as being little different from what came before, the filing reveals a distinctive approach to constitutional law. Cautious and modest where George W. Bush was ambitious and brash, Mr. Obama still claims the authority necessary to sustain almost everything his predecessor did.

Perhaps what’s most important here is what Mr. Obama’s lawyers do not say. The Bush White House long insisted that the president had inherent power as commander in chief to do whatever it took to defend the country — including overriding American and international law. The Obama filing, however, is silent on the topic of inherent executive power. Indeed, the magic words “commander in chief” never even appear.

Technically, the Obama lawyers have not abandoned the argument for broad presidential power, just implied that such authority is unnecessary to get them what they want.

Yet omitting the claim to unfettered executive authority shows respect for Congress and international standards. In effect, the Obama administration is saying to the courts that if the detainees cannot be held as a matter of federal or international law, judges should release them. This approach is brave — so brave it might even prove foolhardy if the courts, sick of nearly a decade of detention, decide to clear the decks.

The filing argues that the authorization for the use of military force passed by Congress after 9/11 — the contemporary equivalent of a declaration of war — gives the president the powers any sovereign would have under the general principles of the international law of war. Relying on international law to make sense of Congress’s grant of power has deep roots in our constitutional tradition.

In the context of America’s present global military posture, however, the rediscovery of this notion is little short of astonishing. The laws of war, mostly designed for old-fashioned struggles between sovereign states, often do not fit today’s circumstances. The Bush administration saw this mismatch as an occasion to treat the Geneva conventions as “quaint” (in the words of Alberto Gonzales, the former White House counsel).

The Obama lawyers, however, seem to believe that the international law of war is flexible enough to serve their interests — and even to expand the president’s power to detain suspects beyond the strict language used by Congress when it gave President Bush authority to carry out his war on terrorism.

Here is where the law gets complicated: In 2001, Congress told the president he could make war on anyone who had “planned, authorized, committed or aided” the Sept. 11 attacks. The Bush administration, though, went further; it claimed the power to detain any “enemy combatant,” defined to include “anyone who is part of or supporting Taliban or Al Qaeda forces or associated forces.” In an unfortunate legal overreach, one administration lawyer said the government could detain a “little old lady in Switzerland” whose donation to an Afghan orphanage ended up in the hands of Al Qaeda.

In place of the “enemy combatant” definition, the Obama administration now claims the right to detain anyone who “substantially supported” terrorists. Thankfully, the Obama standard would free the little old Swiss lady. But the words “substantial support” do not come from international law any more than Bush’s “enemy combatant” did.

The administration lawyers suggest in their brief that “substantial support” of terrorists could be defined by some unspecified analogy to the laws of detention in traditional armed conflict. Yet the details are left to the imagination; and when push comes to shove, this language might well include all the Guantánamo detainees, including those who never belonged to a terrorist group.

The upshot is that the Obama approach is potentially broad enough to continue detaining everyone whom the Bush administration put in Guantánamo in the first place. The legal theories are subtler, and the reliance on international law may prove more attractive to our allies. But President Obama is stuck with the detainees Mr. Bush left him, and some may pose a real danger. Faced with this conundrum, and pressed for answers by judges who are rightfully impatient, the administration is hurrying to reframe existing powers in new legal doctrines.

The true test of whether Mr. Obama has improved on the Bush era lies in how his administration justifies its decisions on the 241 remaining Guantánamo detainees, whose cases will now be evaluated internally and reviewed by the courts. If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Noah Feldman is a law professor at Harvard, a fellow at the Council on Foreign Relations and a contributing writer to The Times Magazine.

Terry v. Ohio

munsal — Mon, 13 Jul 2009 17:19:52 +0000

TERRY v. OHIO, 392 U.S. 1 (1968)

392 U.S. 1

TERRY v. OHIO.
CERTIORARI TO THE SUPREME COURT OF OHIO.
No. 67.
Argued December 12, 1967.
Decided June 10, 1968.

A Cleveland detective (McFadden), on a downtown beat which he had been patrolling for many years, observed two strangers (petitioner and another man, Chilton) on a street corner. He saw them proceed alternately back and forth along an identical route, pausing to stare in the same store window, which they did for a total of about 24 times. Each completion of the route was followed by a conference between the two on a corner, at one of which they were joined by a third man (Katz) who left swiftly. Suspecting the two men of “casing a job, a stick-up,” the officer followed them and saw them rejoin the third man a couple of blocks away in front of a store. The officer approached the three, identified himself as a policeman, and asked their names. The men “mumbled something,” whereupon McFadden spun petitioner around, patted down his outside clothing, and found in his overcoat pocket, but was unable to remove, a pistol. The officer ordered the three into the store. He removed petitioner’s overcoat, took out a revolver, and ordered the three to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz and seized a revolver from Chilton’s outside overcoat pocket. He did not put his hands under the outer garments of Katz (since he discovered nothing in his pat-down which might have been a weapon), or under petitioner’s or Chilton’s outer garments until he felt the guns. The three were taken to the police station. Petitioner and Chilton were charged with carrying concealed weapons. The defense moved to suppress the weapons. Though the trial court rejected the prosecution theory that the guns had been seized during a search incident to a lawful arrest, the court denied the motion to suppress and admitted the weapons into evidence on the ground that the officer had cause to believe that petitioner and Chilton were acting suspiciously, that their interrogation was warranted, and that the officer for his own protection had the right to pat down their outer clothing having reasonable cause to believe that they might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. Petitioner and Chilton were found guilty, an intermediate appellate court affirmed, and the State Supreme Court dismissed the appeal on the ground that “no substantial constitutional question” was involved. Held:

1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, “protects people, not places,” and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9.

2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12.

3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques; and this Court’s approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.

4. The Fourth Amendment applies to “stop and frisk” procedures such as those followed here. Pp. 16-20.

(a) Whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that personwithin the meaning of the Fourth Amendment. P. 16.

(b) A careful exploration of the outer surfaces of a person’s clothing in an attempt to find weapons is a “search” under that Amendment. P. 16.

5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that individual for crime or the absolute certainty that the individual is armed. Pp. 20-27.

(a) Though the police must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20.

(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22.

(c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach petitioner and his companions. P. 22.

(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26.

(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27.

6. The officer’s protective seizure of petitioner and his companions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30.

(a) The actions of petitioner and his companions were consistent with the officer’s hypothesis that they were contemplating a daylight robbery and were armed. P. 28.

(b) The officer’s search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting himself and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30.

7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.

Louis Stokes argued the cause for petitioner. With him on the brief was Jack G. Day.

Reuben M. Payne argued the cause for respondent. With him on the brief was John T. Corrigan.

Briefs of amici curiae, urging reversal, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.

Briefs of amici curiae, urging affirmance, were filed by Solicitor General Griswold, Assistant Attorney General Vinson, Ralph S. Spritzer, Beatrice Rosenberg, and Mervyn Hamburg for the United States; by Louis J. Lefkowitz, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, for the Attorney General of New York; by Charles Moylan, Jr., Evelle J. Younger, and Harry Wood for the National District Attorneys’ Assn., and by James R. Thompson for Americans for Effective Law Enforcement.

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.

Petitioner Terry was convicted of carrying a concealed weapon and sentenced to the statutorily prescribed term of one to three years in the penitentiary.Following the denial of a pretrial motion to suppress, the prosecution introduced in evidence two revolvers and a number of bullets seized from Terry and a codefendant, Richard Chilton, by Cleveland Police Detective Martin McFadden. At the hearing on the motion to suppress this evidence, Officer McFadden testified that while he was patrolling in plain clothes in downtown Cleveland at approximately 2:30 in the afternoon of October 31, 1963, his attention was attracted by two men, Chilton and Terry, standing on the corner of Huron Road and Euclid Avenue. He had never seen the two men before, and he was unable to say precisely what first drew his eye to them. However, he testified that he had been a policeman for 39 years and a detective for 35 and that he had been assigned to patrol this vicinity of downtown Cleveland for shoplifters and pickpockets for 30 years. He explained that he had developed routine habits of observation over the years and that he would “stand and watch people or walk and watch people at many intervals of the day.” He added: “Now, in this case when I looked over they didn’t look right to me at the time.”

His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. “I get more purpose to watch them when I seen their movements,” he testified. He saw one of the men leave the other one and walk southwest on Huron Road, past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece – in all, roughly a dozen trips. At one point, while the two were standing together on the corner, a third man approached them and engaged them briefly in conversation. This man then left the two others and walked west on Euclid Avenue. Chilton and Terry resumed their measured pacing, peering, and conferring. After this had gone on for 10 to 12 minutes, the two men walked off together, heading west on Euclid Avenue, following the path taken earlier by the third man.

By this time Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window on Huron Road, he suspected the two men of “casing a job, a stick-up,” and that he considered it his duty as a police officer to investigate further. He added that he feared “they may have a gun.” Thus, Officer McFadden followed Chilton and Terry and saw them stop in front of Zucker’s store to talk to the same man who had conferred with them earlier on the street corner. Deciding that the situation was ripe for direct action. Officer McFadden approached the three men, identified himself as a police officer and asked for their names. At this point his knowledge was confined to what he had observed. He was not acquainted with any of the three men by name or by sight, and he had received no information concerning them from any other source. When the men “mumbled something” in response to his inquiries, Officer McFadden grabbed petitioner Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry’s overcoat Officer McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun. At this point, keeping Terry between himself and the others, the officer ordered all three men to enter Zucker’s store. As they went in, he removed Terry’s overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton’s overcoat, but no weapons were found on Katz. The officer testified that he only patted the men down to see whether they had weapons, and that he did not put his hands beneath the outer garments of either Terry or Chilton until he felt their guns. So far as appears from the record, he never placed his hands beneath Katz’ outer garments. Officer McFadden seized Chilton’s gun, asked the proprietor of the store to call a police wagon, and took all three men to the station, where Chilton and Terry were formally charged with carrying concealed weapons.

On the motion to suppress the guns the prosecution took the position that they had been seized following a search incident to a lawful arrest. The trial court rejected this theory, stating that it “would be stretching the facts beyond reasonable comprehension” to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons. However, the court denied the defendants’ motion on the ground that Officer McFadden, on the basis of his experience, “had reasonable cause to believe . . . that the defendants were conducting themselves suspiciously, and some interrogation should be made of their action.” Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory “stop” and an arrest, and between a “frisk” of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer’s investigatory duties, for without it “the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.”

After the court denied their motion to suppress, Chilton and Terry waived jury trial and pleaded not guilty. The court adjudged them guilty, and the Court of Appeals for the Eighth Judicial District, Cuyahoga County, affirmed. State v. Terry, 5 Ohio App. 2d 122, 214 N. E. 2d 114 (1966). The Supreme Court of Ohio dismissed their appeal on the ground that no “substantial constitutional question” was involved. We granted certiorari, 387 U.S. 929 (1967), to determine whether the admission of the revolvers in evidence violated petitioner’s rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U.S. 643(1961). We affirm the conviction.

I.

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity – issues which have never before been squarely presented to this Court. Reflective of the tensions involved are the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to “stop and frisk” – as it is sometimes euphemistically termed – suspicious persons.

On the one hand, it is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess. For this purpose it is urged that distinctions should be made between a “stop” and an “arrest” (or a “seizure” of a person), and between a “frisk” and a “search.” Thus, it is argued, the police should be allowed to “stop” a person and detain him briefly for questioning upon suspicion that he may be connected with criminal activity. Upon suspicion that the person may be armed, the police should have the power to “frisk” him for weapons. If the “stop” and the “frisk” give rise to probable cause to believe that the suspect has committed a crime, then the police should be empowered to make a formal “arrest,” and a full incident “search” of the person. This scheme is justified in part upon the notion that a “stop” and a “frisk” amount to a mere “minor inconvenience and petty indignity,” which can properly be imposed upon the citizen in the interest of effective law enforcement on the basis of a police officer’s suspicion.

On the other side the argument is made that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment. It is contended with some force that there is not – and cannot be – a variety of police activity which does not depend solely upon the voluntary cooperation of the citizen and yet which stops short of an arrest based upon probable cause to make such an arrest. The heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution. Acquiescence by the courts in the compulsion inherent in the field interrogation practices at issue here, it is urged, would constitute an abdication of judicial control over, and indeed an encouragement of, substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in “the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14 (1948). This, it is argued, can only serve to exacerbate police-community tensions in the crowded centers of our Nation’s cities.

In this context we approach the issues in this case mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street. The State has characterized the issue here as “the right of a police officer . . . to make an on-the-street stop, interrogate and pat down for weapons (known in street vernacular as `stop and frisk’).” But this is only partly accurate. For the issue is not the abstract propriety of the police conduct, but the admissibility against petitioner of the evidence uncovered by the search and seizure. Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. See Weeks v. United States, 232 U.S. 383, 391 -393 (1914). Thus its major thrust is a deterrent one, see Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965), and experience has taught that it is the only effective deterrent to police misconduct in the criminal context, and that without it the constitutional guarantee against unreasonable searches and seizures would be a mere “form of words.” Mapp v. Ohio, 367 U.S. 643, 655 (1961). The rule also serves another vital function – “the imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222 (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions. Thus in our system evidentiary rulings provide the context in which the judicial process of inclusion and exclusion approves some conduct as comporting with constitutional guarantees and disapproves other actions by state agents. A ruling admitting evidence in a criminal trial, we recognize, has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.

The exclusionary rule has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. Moreover, in some contexts the rule is ineffective as a deterrent. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. Doubtless some police “field interrogation” conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.

Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of these limitations. The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us. Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.

Having thus roughly sketched the perimeters of the constitutional debate over the limits on police investigative conduct in general and the background against which this case presents itself, we turn our attention to the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest. Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman’s power when he confronts a citizen without probable cause to arrest him.

II.

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime – “arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search” is two-fold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356 -358 (1931); see United States v. Di Re, 332 U.S. 581, 586 -587 (1948). The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring); see, e. g., Preston v. United States, 376 U.S. 364, 367 -368 (1964); Agnello v. United States, 269 U.S. 20, 30 -31 (1925).

The distinctions of classical “stop-and-frisk” theory thus serve to divert attention from the central inquiry under the Fourth Amendment – the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. “Search” and “seizure” are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a “technical arrest” or a “full-blown search.”

In this case there can be no question, then, that Officer McFadden “seized” petitioner and subjected him to a “search” when he took hold of him and patted down the outer surfaces of his clothing. We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did. And in determining whether the seizure and search were “unreasonable” our inquiry is a dual one – whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

III.

If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether “probable cause” existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, see, e. g., Katz v. United States, 389 U.S. 347 (1967); Beck v. Ohio, 379 U.S. 89, 96 (1964); Chapman v. United States, 365 U.S. 610 (1961), or that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances, see, e. g., Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); cf. Preston v. United States, 376 U.S. 364, 367 -368 (1964). But we deal here with an entire rubric of police conduct – necessarily swift action predicated upon the on-the-spot observations of the officer on the beat – which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.

Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context. In order to assess the reasonableness of Officer McFadden’s conduct as a general proposition, it is necessary “first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,” for there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Camara v. Municipal Court, 387 U.S. 523, 534 -535, 536-537 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. Ohio, 379 U.S. 89, 96 -97 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e. g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple “`good faith on the part of the arresting officer is not enough.’ . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be `secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, supra, at 97.

Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story in quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare in the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

The crux of this case, however, is not the propriety of Officer McFadden’s taking steps to investigate petitioner’s suspicious behavior, but rather, whether there was justification for McFadden’s invasion of Terry’s personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

We must still consider, however, the nature and quality of the intrusion on individual rights which must be accepted if police officers are to be conceded the right to search for weapons in situations where probable cause to arrest for crime is lacking. Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience. Petitioner contends that such an intrusion is permissible only incident to a lawful arrest, either for a crime involving the possession of weapons or for a crime the commission of which led the officer to investigate in the first place. However, this argument must be closely examined.

Petitioner does not argue that a police officer should refrain from making any investigation of suspicious circumstances until such time as he has probable cause to make an arrest; nor does he deny that police officers in properly discharging their investigative function may find themselves confronting persons who might well be armed and dangerous. Moreover, he does not say that an officer is always unjustified in searching a suspect to discover weapons. Rather, he says it is unreasonable for the policeman to take that step until such time as the situation evolves to a point where there is probable cause to make an arrest. When that point has been reached, petitioner would concede the officer’s right to conduct a search of the suspect for weapons, fruits or instrumentalities of the crime, or “mere” evidence, incident to the arrest.

There are two weaknesses in this line of reasoning, however. First, it fails to take account of traditional limitations upon the scope of searches, and thus recognizes no distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons. The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a “full” search, even though it remains a serious intrusion.

A second, and related, objection to petitioner’s argument is that it assumes that the law of arrest has already worked out the balance between the particular interests involved here – the neutralization of danger to the policeman in the investigative circumstance and the sanctity of the individual. But this is not so. An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime. Petitioner’s reliance on cases which have worked out standards of reasonableness with regard to “seizures” constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court, supra.

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.

IV.

We must now examine the conduct of Officer McFadden in this case to determine whether his search and seizure of petitioner were reasonable, both at their inception and as conducted. He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a “stick-up.” We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery – which, it is reasonable to assume, would be likely to involve the use of weapons – and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point. Thus, when Officer McFadden approached the three men gathered before the display window at Zucker’s store he had observed enough to make it quite reasonable to fear that they were armed; and nothing in their response to his hailing them, identifying himself as a police officer, and asking their names served to dispel that reasonable belief. We cannot say his decision at that point to seize Terry and pat his clothing for weapons was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. Compare Katz v. United States, 389 U.S. 347, 354 -356 (1967). The entire deterrent purpose of the rule excluding evidence seized in violation of the Fourth Amendment rests on the assumption that “limitations upon the fruit to be gathered tend to limit the quest itself.” United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930); see, e. g., Linkletter v. Walker, 381 U.S. 618, 629 -635 (1965); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206, 216 -221 (1960). Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. Warden v. Hayden,387 U.S. 294, 310 (1967) (MR. JUSTICE FORTAS, concurring).

We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. See Sibron v. New York, post, p. 40, decided today. Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367 (1964). The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

The scope of the search in this case presents no serious problem in light of these standards. Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.

V.

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Affirmed.

MR. JUSTICE BLACK concurs in the judgment and the opinion except where the opinion quotes from and relies upon this Court’s opinion in Katz v. United States and the concurring opinion in Warden v. Hayden.

MR. JUSTICE HARLAN, concurring.

While I unreservedly agree with the Court’s ultimate holding in this case, I am constrained to fill in a few gaps, as I see them, in its opinion. I do this because what is said by this Court today will serve as initial guidelines for law enforcement authorities and courts throughout the land as this important new field of law develops.

A police officer’s right to make an on-the-street “stop” and an accompanying “frisk” for weapons is of course bounded by the protections afforded by the Fourth and Fourteenth Amendments. The Court holds, and I agree, that while the right does not depend upon possession by the officer of a valid warrant, nor upon the existence of probable cause, such activities must be reasonable under the circumstances as the officer credibly relates them in court. Since the question in this and most cases is whether evidence produced by a frisk is admissible, the problem is to determine what makes a frisk reasonable.

If the State of Ohio were to provide that police officers could, on articulable suspicion less than probable cause, forcibly frisk and disarm persons thought to be carrying concealed weapons, I would have little doubt that action taken pursuant to such authority could be constitutionally reasonable. Concealed weapons create an immediate [392 U.S. 1, 32] and severe danger to the public, and though that danger might not warrant routine general weapons checks, it could well warrant action on less than a “probability.” I mention this line of analysis because I think it vital to point out that it cannot be applied in this case. On the record before us Ohio has not clothed its policemen with routine authority to frisk and disarm on suspicion; in the absence of state authority, policemen have no more right to “pat down” the outer clothing of passers-by, or of persons to whom they address casual questions, than does any other citizen. Consequently, the Ohio courts did not rest the constitutionality of this frisk upon any general authority in Officer McFadden to take reasonable steps to protect the citizenry, including himself, from dangerous weapons.

The state courts held, instead, that when an officer is lawfully confronting a possibly hostile person in the line of duty he has a right, springing only from the necessity of the situation and not from any broader right to disarm, to frisk for his own protection. This holding, with which I agree and with which I think the Court agrees, offers the only satisfactory basis I can think of for affirming this conviction. The holding has, however, two logical corollaries that I do not think the Court has fully expressed.

In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person [392 U.S. 1, 33] addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.

Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.

The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so. When he did, he had no reason whatever to suppose that Terry might be armed, apart from the fact that he suspected him of planning a violent crime. McFadden asked Terry his name, to which Terry “mumbled something.” Whereupon McFadden, without asking Terry to speak louder and without giving him any chance to explain his presence or his actions, forcibly frisked him.

I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would, however, make explicit what I think is implicit in affirmance on [392 U.S. 1, 34] the present facts. Officer McFadden’s right to interrupt Terry’s freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer’s right to take suitable measures for his own safety followed automatically.

Upon the foregoing premises, I join the opinion of the Court.

MR. JUSTICE WHITE, concurring.

I join the opinion of the Court, reserving judgment, however, on some of the Court’s general remarks about the scope and purpose of the exclusionary rule which the Court has fashioned in the process of enforcing the Fourth Amendment.

Also, although the Court puts the matter aside in the context of this case, I think an additional word is in order concerning the matter of interrogation during an investigative stop. There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. However, given the proper circumstances, such as those in this case, it seems to me the person may be briefly detained against his will while pertinent questions are directed to him. Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation. In my view, it is temporary detention, warranted by the circumstances, which chiefly justifies the protective frisk for weapons. Perhaps the frisk itself, where proper, will have beneficial results whether questions are asked or not. If weapons are found, an arrest will follow. [392 U.S. 1, 35] If none are found, the frisk may nevertheless serve preventive ends because of its unmistakable message that suspicion has been aroused. But if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the process.

MR. JUSTICE DOUGLAS, dissenting.

I agree that petitioner was “seized” within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a “search.” But it is a mystery how that “search” and that “seizure” can be constitutional by Fourth Amendment standards, unless there was “probable cause to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.

The opinion of the Court disclaims the existence of “probable cause.” If loitering were in issue and that [392 U.S. 1, 36] was the offense charged, there would be “probable cause” shown. But the crime here is carrying concealed weapons; 2 and there is no basis for concluding that the officer had “probable cause” for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of “probable cause.” We hold today that the police have greater authority to make a “seizure” and conduct a “search” than a judge has to authorize such action. We have said precisely the opposite over and over again. 3 [392 U.S. 1, 37]

In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100 -102:

“The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of `probable cause’ before a magistrate was required.

. . . . .

[392 U.S. 1, 38]

“. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.”

338 U.S. 160, 175

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. [392 U.S. 1, 39] Until the Fourth Amendment, which is closely allied with the Fifth, 4 is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

The State of Emergency as the Empire’s Mode of Governance

munsal — Sun, 12 Jul 2009 18:01:21 +0000

Jean-Claude Paye (Original to Multitudes 16, March 2004)

The atrocities of September 11, 2001 caused an unprecedented acceleration in the transformation of the corpus of criminal and criminal procedure laws in Western countries. In the months following the outrage, and sometimes within days, governments have enacted measures curtailing public and private liberties. In our opinion, a real break is taking place, because it is the very existence of the rule of law as we know it which is at stake.

These laws fit very much within a tendency that privileges procedure above law and equity in the dispensation of justice. Here, we are particularly concerned about the precedence being taken by emergency procedures. This break is so profound as to cause an upheaval of the norm as it prevailed up to now, causing the exception to become the rule. We conclude that emergency procedures are in the process of replacing the constitution as the ruling paradigm of politics.

A Break in the Tradition of Criminal Law.

Anti-terrorism legislations, whether ancient or modern, always aim to legitimise exceptional criminal procedures at all levels of the judiciary process, from the inquiry itself up to and including the final judgement. We are talking here special methods of investigation such as surveillance, mail interception, telephone tapping and electronic monitoring. These measures can nowadays be implemented even in the absence of an infraction. Suspicion of terrorist activities now also warrants exceptional preventive detention or administrative custody, even of simple witnesses, as in the United States. Anti-terrorism legislation also condones curbing communications between an accused person and her or his attorney, and, on a more general plane, allows for the setting up of specific emergency jurisdictions.

In Spain, a person accused of terrorist activities does not have the right to a lawyer of her/his own choosing. In Germany, various derogations have been enacted to customary rules regarding searches, entering property, identity checks, and arrest and imprisonment. At the level of court procedure, rules have been set to alter the nature of competent jurisdictions and to curtail the rights of the defence. Defence attorneys can for instance been denied access to procedures in the event of ‘circumstances leading to the belief’ that they may act in such a way as to thwart the instruction. The same rule allows for the lawful breach of the confidentiality of the correspondence between attorney and client.

As for its consequences for the criminal process, the new anti-terrorist laws are very much in conformity with more ancient jurisdictional tendencies. They do however vastly extent their scope. Indeed they aim not so much to restrict the fundamental liberties of certain categories of the population, but rather to encompass it as a whole. They establish a permanent and generalised surveillance and control of individuals and will preventively attack and arraign any process of class re-composition by criminalising social movements beforehand.

A Manifestation of Imperial Power.

An important feature of these recent anti-terrorist laws is that, contrary to previous legislation, they no longer stem from relatively autonomous national initiatives, but are being put forward by international bodies such as the G8, the European Council, or the European Union. This results in this type of legislation being implemented in a whole set of countries, including those which have never faced any sort of terrorist menace.

The more recent legal measures against terrorism anticipate rather than answer terrorist actions. They come in fulfilment by national states of their international obligations, and have been more specifically brought about by the demands of the United States of America. The place taken by the United States in the whole process is in fact very characteristic of the current situation, the fight against terrorism being very much constitutive of its Imperial leadership.

Taking lawful interception of (electronic) communication as an example, it is the FBI that has to a very large extent set its specifications. Regarding computer criminality, the FBI also has a lot of leverage in directing the police of most foreign states. The level of influence the United States are able to exert in shaping the anti-terrorist legislation of other governments confirms their forward role in the process of the modernisation of power on the global scale.

But anti-terrorist measures also expose another role played by the United States, viz. that of their direct super-power domination over other states.

The first component of this relationship is the privilege that has ‘de jure’ been granted to American citizenship, by attaching to it rights that are denied to other nationalities. This is particularly evident in the case of the differential legal treatment meted out to US citizens and foreigners. In terrorism cases and those related to organised crime, American courts also claim universal jurisdiction and extra-territorial competence.

The USA Patriot Act as Suspension of Foreigners’ Rights.

The USA Patriot Act of 26 October 2001 empowers the General Attorney of the United States to order the arrest and imprison any foreigner suspected of threatening national security. Such measures were further extended by the ‘Military Order’ of November 31 of the same year, authorizing to charge non-American terrorism suspects before special courts and to keep them in indefinite custody.

These two measures create zones of lawlessness. They suspend or even abolish the fundamental rights of suspects. Suspects are then totally in the hands of the executive, and no judicial control whatsoever applies to them. Thus, prisoners captured during the Afghan conflict are now shepherded in Guantanamo Bay and do not qualify for Prisoners of War status as defined by the Geneva Convention. This suspension of rights not only takes place within US territory, but also abroad, since the capture itself took place in Afghanistan, and, in the absence of a formal declaration of war, was conducted as a police sweep rather than as a military operation.

Aiming at the total abolition of protection under due process of law for arrested foreigners, such measures result in pure lawlessness towards non-American citizens. At the same time, this discriminatory mechanism doubles up with a suspension of international law, where American citizens get a privileged treatment that immunises them against arraignment before the International Penal Tribunal in The Hague when they are engaging in ‘international peace maintenance operations’.

This suspension of the due process of law is emblematic of a pure relation of power. It constitutes the legal manifestation of the application of pure violence. Furthermore it is also paired, through its inclusion in domestic American law, and through its acceptance by the United Nations or through bilateral extradition agreements, with a hegemonic function, and with the recognition by other states of the particular and dominant status that the United States claim for themselves with regard to international law.The USA Patriot Act Two as a Generalised Suspension of the Rule of Law.

Still unsatisfied with the exceptional legislation already in place, the Bush administration has drafted a new anti-terrorism law, the ‘Domestic Security Enhancement Act of 2003’ (1), which further aggravates the legal deviations of the ‘USA Patriot Act’. This new text is already known as ‘Patriot II’. Building upon the first Patriot Act, it extents existing discriminatory measures against non-citizens and further enhances the powers of the executive at the expense of the judiciary. This project is a big step forward towards the establishment of emergency rule. It generalises the system of suspension of the rights of American citizens suspected of collaboration with entities deemed to be terrorist organisations. Exceptional procedures thus become the norm.

The new act provides for an easier surveillance of American citizens by the government, and for interception and monitoring of their communications, electronic or otherwise, without judicial review. Simply applying to citizens procedures designed to fight a foreign power will suffice. Such actions need only be deemed to take place within a vaguely phrased monitoring and intelligence acquisition drive directed against ’agents of a foreign power’.

The originality of the new project as compared to its predecessor lies of course in the latitude given to the executive to subject American citizens to the kind of exceptional legislation henceforth restricted to foreigners, with the possibility of depriving them of their American citizenship as ultimate element of this emergency procedure.

Indeed, the draft legislation provides for depriving American citizens of their nationality, in case they aid or abet an organisation branded as terrorist by the Attorney General of the United States. This provision represents a clear break with previous legislation which made a sharp distinction between what applies to nationals and to non-citizens. It will result in Americans being henceforth subjected not to the law of the land, however restrictive it has become with respect to individual liberties, but to the sole whim of the executive.

Even if the draft still formally distinguishes between citizens and non-nationals, this has become meaningless in practice, since the legal protection granted to US citizens can be taken away by a mere administrative decision. For those advocating the new legislation, it would be the suspect (herself or himself) who would evidence the wish to lose citizenship by supporting a group deemed to be terrorist. The idea being that ‘one can infer her or his intention by her or his actions’, even if the person has never manifested such an intention, or applied for relinquishing American citizenship.

The State of Emergency, European Union Style.

On December 6, 2001, the European justice and interior ministers convened and adopted a ‘framework declaration’ in order to harmonise existing national legislation concerning terrorist activities. The nature of incriminating evidence in this regard is entirely political: it derives from the intentions of its author.

The crime of terrorism applies when the authors ‘actions‘ are deemed to have the destruction of the political, economic or social structures of a country as its aim’, or when ‘its aim is to gravely destabilise a country’. Concepts as ‘destabilisation or destruction of economic/ social/ political structures of a country’ makes it possible to mount a frontal attack against social movements. Similar arguments were used in the beginning of the 80s by the government of Margaret Thatcher to apply the then existing anti-terrorist legislation to the miners’ strike.

The accusation of terrorism also applies to activities ‘that intend to unduly force public bodies or an international organisation to either act or refrain to act in a particular manner’. Since every social movement tends to frighten some part of the public and to force authorities to act or not to act in a certain way, the interpretative scope of such a legislation is extremely wide indeed. Such qualifiers as ‘unduly’ and ‘gravely’ do not provide for any kind of objective definition of the incriminated actions. It will be up to the authorities to judge whether they were subjected to intolerable pressure. More generally terrorism is defined in such a way as to leave it to governments to decide who and whatever does fall in that category.

Anticipating a New ‘Social War’.

In such a context, it is easy to envisage how rallies, strikes, squatting or ‘hijacking’ public spaces, occupying infrastructure installations, or disrupting mass transit, all with the intention to put pressure to the government to enact social policies or to stop the dismantlement of the same, can easily be assimilated to terrorist acts.

Similar actions, aimed at the policies of international bodies or organisations, could meet the same treatment. The General Agreement on Trade in Services (GATS), whose objective is the complete removal of all rules that impede a total liberalisation of services, is an example of the complete dismantlement of state regulation. A spirited opposition movement fighting for the maintenance of public services, or for the regulation of certain sectors of the economy, could thus easily be branded as terrorist.

The new criminal legislation corresponds with the second phase of the establishment of an integrated structure of power at the global level: Empire. The first phase consisted in the political organisation of the global market, and the liberalisation of the movements of goods and finance capital. Labour force management remained at this stage the resort of the national states. The negotiations about liberalising investments, and about the GATS, are initiating a second phase of the process, that of globalisation of management of the workforce and of its reproduction parameters. The dismantling of the existing political set-up is the precondition for the shift in its organic composition.

The End of the Separation of Powers.

The ‘USA Patriot Act’ is still based on a dual judicial system: on the one side, some legal protection for US citizens, even if increasingly restricted; on the other, abolition of rights for non-nationals. This dual system disappears under the ‘Patriot II’ draft, since it enables the executive to strip American citizens of their nationality and to transfer them from a system of legal protection to an environment where the rule of law does not obtain.

The fight against terrorism thus marks a fundamental break in the Western political structure, which was traditionally based on a dual system: rule of law inside the national territory, and ‘’pure violence’’ abroad.

Patriot II, if adopted, will mean the legal implementation of the state of emergency, i.e. the enshrinement of lawlessness within the law.

In an article in the French daily ‘Le Monde’, Giorgio Agamben argued that the exercise of political power in the Western world was predicated on the articulation of two relatively distinct systems, that of the juridical order and that of pure violence. ‘’The Western political system appears to be a double mechanism, based on the dialectical workings of two heterogeneous and apparently antithetical components: law and pure violence. As long as both components remain separated, this dialectic can function, but as soon as the state of emergency becomes the rule, the political system itself becomes a system of death;’’ (2) That is exactly what is happening right under our eyes, as emergency rule becomes Imperial law.

There is clearly a double phenomenon at work, viz. a suspension of the rule of law, and a shift within the law of criminal procedure. Even if the suspension of the rule of law is more apparent in the United States, a similar development is taking place in European countries, as emergency legislation is being implemented.

At this juncture, the consolidation of Imperial rule demands that the restrictions on public liberties be enshrined in criminal law. Its current transformation shows that we are witnessing the end of the dual system of rule of law and pure violence.

But then, this double structure was closely related to the societal make-up of the nation-state, which applies the rule of law within what it considers to be its border, and abolishes it towards its exterior. Empire, as the new form of exercise of power at the global scale has no exterior, and hence every movement, every political or military action takes place within its borders. The distinction between internal and external, and between rule of law and pure violence, typical of the nation-state, no longer makes any sense.

The Specific Role of the United States of America.

The United States take a specific place within the imperial structure because of their position of dominance also expresses itself in the ability to project their national power on the rest of the world, which even though they may consider it as their back garden, is still an ‘abroad’ for them. The difference in legal status between US citizens and foreigners, and the suspension of the latter’s rights, bear witness to the singular position of the USA within the Imperial constellation.

Just like any nation-state, the United States have implemented a dual judicial system, based on the rule of law for citizens and on a state of non-law for foreigners. Traditionally, as with other nation-states, such a distinction between two legal dispensations articulates itself around the concept of border.

However, to the American government, ‘border’ does not mean a geographical feature. The primacy of American citizenship, the duality in the dispensation of justice is not a matter of a given territory, but concerns the planet as a whole. At stake is not only to enforce the immunity of American citizens with regard to international tribunals, which are supposed to be common jurisdictions, but also to force other states to allow American authorities the right to judge the citizens of these very countries through purpose-created emergency courts.

The most recent agreements signed between the USA and the European Union represent the recognition by the latter of the American privilege to legislate in the matter of suspension of customary law and to build up a new judicial world order based on emergency legislation. These agreements are the conclusive piece of a process whereby European jurisdictions are being materially incorporated in the system of suspension of rights devised by the United States. As a consequence, European countries have accepted, under conditions framed and imposed by the United States, to deliver their own citizens in the hands of American authorities as and when those brand them as terrorists.

The United States take a pioneer role in the institution of this new judicial order, they decide what is a case of emergency, and in its wake, in which way the prevailing norm has to be altered, especially with regard to criminal law and criminal procedure. This undoubtedly marks the reinsertion of pure violence within the international order, and represent a constitutive act of their Imperial leadership.

The State of Emergency.

The fight against terrorism causes a re-structuring of political power by way of a strengthening of the powers of the executive. Through the enactment of framework legislation, which is then being applied by way of decrees and administrative circulars or even simple lists established by the justice ministry (such as lists of purported terrorist organisations), the executive fully functions as legislative power and instrumentalises completely the judicial apparatus.

Such arrangements are typical of a state of emergency. Since the state of emergency is usually considered a political phenomenon, defining the concept in precise legal terms it is not a simple matter. As described by Carl Schmitt, it ‘’wavers in an uncertain and ambiguous fashion at the cross-road between the political and the legal’’(3). Traditionally, declaring a state of emergency answers a necessity, as put forward by the actual power, to maintain public order in the face of extraordinary circumstances, usually within a context of civil strife. The fight against terrorism is routinely described in terms of a world-wide civil strife, a war on the long haul against an enemy in need of being constantly redefined. This situation, however, differs from the habitual state of affairs. The (global) power does not so much face actual disturbances, but strives to neutralise virtual threats.

Here, the discourse bandied by the global power harbours a paradox: judicial reform is motivated by a sudden emergency, but the emergency itself is said to be of long duration. Hence the state of emergency becomes a permanent fixture. It comes to be considered as the new form of the political order, with the aim to defend democracy and human rights. Or to put it differently, citizens must accept for a long time to come the curtailment of their concrete liberties in the defence of a self-proclaimed and entirely abstract democratic order.

The fact that most of these measures are enacted as laws also proves that the global power is going for the long haul. To achieve this, it is seeking a new legitimacy whereby the people must voluntarily abide by the dismantlement of their constitutional safeguards.

The Relevance of Carl Schmitt.

For Carl Schmitt, sovereignty does not lie in the ability to impose a norm, but in a decision-making potential that is free of any normative obligation. Rather than the legal norm, it is in extraordinary legislation, ‘’where the decision making process leaves the juridical norm behind’’ that the authority of the state shines at its best. ‘’The true sovereign is who is able to decide that a given situation is an extraordinary one’’.

Contrary to Max Weber, Schmitt does not locate the state’s sovereignty in its monopoly of domination of violence, but in its monopoly of decision-making. Whereas this definition appears to be somewhat reductive in the case of the nation-state, it does perfectly fit the Imperial structure. Schmitt circumscribes the political process starting from the ‘identify friend or foe’ concept. Such an approach tends to privilege external politics as against internal governance. Such an interpretation fails to account for the organic character of sovereignty in the nation-state, of the interdependency between internal and external sovereignty, and for the interplay obtaining between various institutions and loci of power. But in the wake of the deconstruction of the nation-state and of the re-integration of its structure within a form of imperial power, Schmitt’s analyses are gaining a renewed interest.

For Schmitt, the decision as to declare a state of emergency takes place within a judicial framework. The emergency situation is not one of chaos. When the state abolishes (constitutional) law, it is allegedly in order to safeguard it. Seen in this light, the decision as to declare an emergency is first and foremost, a decision regarding the circumstances in which the norm applies. ‘’A normal situation needs to be postulated, and then, the sovereign is who is able to decide in last resort whether a normal situation obtains or not’’. With Empire, the executive power of the United States of America plays the role of the sovereign as described by Schmitt. There is indeed an embedding of the emergency regulations within a juridical order, but it is an order devoid of concrete rights.

The issues that have been raised by Schmitt are becoming relevant again in the context of the current fight against terrorism. Here too this form of government is predicated on the long haul. These dispositions also generate a new juridical order, where extraordinary procedures occupy the centre stage, and where the exception becomes the norm. Whereas the fight against terrorism leads to a suspension of rights and produces a new juridical order, it also and at the same time produces a new enemy, both in a formal and in a material sense. Unlike martial law, this transformation of the juridical order does not aim to combat something that is external to the system, but something that is inherent to it. Hence we witness an inversion of the relationship between means and aims. The designated enemy; the terrorist organisation, becomes the very instrument of the transformation of the judicial system.

State of Emergency or Dictatorship?

Giorgio Agamben’s enquiry into the Roman ‘justicium’ enabled him to establish a distinction between dictatorship and state of emergency. The Roman dictator was a special magistrate, whose extensive powers were conferred by a specific piece of legislation, in conformity with the prevailing constitutional order. Within the Roman state of emergency, the extension of the powers conferred to magistrates was simply obtained by suspending those laws that limited them. ‘’The state of emergency was therefore not a dictatorship (…) but a space void of laws, a zone of anomia, where all prevailing legal dispensations, and especially those regarding the distinction between what is public and what is private, have been suspended’’.

Agamben considers that the current forms of deviation from the rule of law indeed qualify as a state of emergency, but a closer look suggests that things are less firmly determined.

What we do see is a world-wide instrumentalisation of the judiciary by the executive. The fight against terrorism allows for the prosecution of any person suspected to be member of an organisation listed as terrorist by the ministry of justice or even by a simple officer of police. The most advanced instance of such a conflation of powers happens in the United States, where the executive has claimed for itself the authority to nominate judges to sit in military emergency courts. The concentration of powers within the executive, as it also acquires those of the judiciary, transform the president into a magistrate with very extended competences bestowed to him by all sorts of specific laws, acts, and decrees.

In France, the so-called ‘Perben Act’ has extended the powers of the police and has altered the modalities of the inquiry by augmenting the allowable time of remand custody, and the possibilities of searches and of monitoring/ surveillance in the case of ‘organised crime’. A structure of pro-active investigations has been set up, whereby police is allowed to make use of special techniques, without notification to the person suspected.

The law also provides for guilty pleading, with a procedure dubbed ‘’arraignment under preliminary admittance of guilt’’(4). This system has become extremely common in the United States. Its principle is to achieve a decrease in the indictment through a restatement of the charges brought forward (for instance by re-qualifying murder as manslaughter), this in exchange for an admission of guilt. The method considerably reinforces the supremacy of the procedure above that of the law. It formally enforces a contract of sorts between two highly unequal parties and esablishes a deal-making procedure which is foreign to the principle of justice.

At the same time as ‘guilty pleading’ is being advocated, another form of plea bargaining has been officially sanctioned in France since 1999. Called ‘composition penale’ (‘accomodation in the matter of a criminal procedure’), it makes it possible for an accused to escape indictment. First restricted to offences carrying a prison sentence of less than three years, the limit has recently been pushed to five years. Consequently it is now made to cover a large range of white collar crimes also. Hence, offences connected with financial criminality may be dealt through plea bargaining and their authors can escape indictment.

And so we see the creation of a ‘modular justice’: on the one hand guilt till proof of the contrary for those designed as such by the police apparatus, while on the other, authors of financial and economic crimes can escape scot-free. This privilege has now been formally recognised. It has become the law of the land.

Through this law, the justice ministry also introduces itself into the working of the criminal procedure process by claiming a right to intervene in individual cases, further enshrining the end of the separation of powers. The minister of justice now appears as a magistrate with extraordinary powers conferred by statute law.

The enhancement of the powers of both police and prosecution, institutions which are closely linked to the executive, means a shift of competences which used to be of the exclusive domain of judges. These extraordinary measures clearly lead to an effective suspension of fundamental freedoms and alter the nature of the rule of law. Such dispositions, as put forward in acts and decrees championed by the executive, are part and parcel of a new juridical order, that of the ‘constitution-making dictatorship’.

These dispositions also represent the end-stage of Imperial politics, resulting in a form of governance which guarantees the political and military provisions of a global management of the work force, as set up through the WTO negotiations regarding foreign investments and the privatisation of public services. Seen in this light, the state of emergency appears as a transition phase in which the work force is ‘liberated’ from its social protection. To this end, the abolition of concrete political rights is a prerequisite. Once this process has been achieved, dictatorship will be the expression of a new juridical order, one of abstract rights, and of an universal work force shorn of its historic and political particularities dating from the epoch of the nation-states.

The main objective of the current anti-terrorism legislation is not, as was the case with a previous legal framework, to exclude the social struggle movements from the realm of politics and to subject them to criminal law. Rather, it is the political intention of their authors, viz. the destabilisation of the sitting government, which leads to their criminalisation.

Such laws do not institute an order without laws. On the contrary criminal law itself becomes a constitutive feature, which divides the political in two opposites: ‘ good and evil’. The jumbling together of the domain of politics with that of criminal law enables the executive to exercise a magisterial function, and to punish any opposition it does not wish to recognise.

The setting up of any particular form of government is therefore not dependent upon a formal coherence at the level of law making, but upon the immediate relation of power, and upon the capacity of the people to resist such arrangements. Under the state of emergency there is always a formal reference to the restoration of the rule of law. Such a future, however, is not on the agenda of the powers that be.

Notes

(1)

http://www.publicintegrity.org/dataweb/download/Story_0&_020703_doc_1.pdf

(2) Giorgio Agamben, ‘L’etat d’exception’, article in Le Monde, September 12, 2002. See also his book ‘Homo Sacer, Sovereign Power and Naked Life’ (1st Italian edition: 1994∞

(3) Carl Schmitt ‘Political Theology’

(4) Pascal Biche, ‘guilty pleading’, an American model of justice, article in Liberation, November 27, 2003.

The State of Emergency

munsal — Sun, 12 Jul 2009 15:07:34 +0000

Giorgio Agamben

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.

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 emergency 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 emergency 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 emergency 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 emergency 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 emergency 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 emergency, 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 emergency. And in this sense we can define modern totalitarianism as the institution, by way of a state of emergency, 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 emergency has become one of the most important measures of contemporary States, democracies included. And furthermore, it is not necessary that a state of emergency be declared in the technical sense of the term.

At least since Napoleon’s 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 emergency”; Nazi legal theorists spoke unconditionally of an “intentional state of emergency” in order to install the National Socialist State. During the world wars, the recourse to a state of emergency 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 emergency tends more and more to present itself as the dominant paradigm of government in contemporary politics. Once the state of emergency 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 emergency 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 Bush’s 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 emergency 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.

The objective of both these books is to inscribe the state of emergency into a legal context. Schmitt knows perfectly well that the state of emergency, 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 emergency and the legal order: “The state of emergency 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 emergency 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 emergency 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 emergency, in Political Theology, can be presented as a doctrine of sovereignty. The sovereign, who can proclaim a state of emergency, 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 emergency 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.” To be outside and yet belong: such is the topological structure of the state of emergency, 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 l’autorite.” ["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 emergency. 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.

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 emergency. (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 emergency 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 emergency 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 emergency 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 emergency?

2. The specific quality of the state of emergency 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 emergency 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 emergency, 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. Anthony’s 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 wit 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 an 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.

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 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 t 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 emergency, 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 h 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 c the state of emergency. – The state of emergency is not a dictatorship, but a space devoid of law. In the Roman Constitution, the dictator was a certain type c magistrate who received his power from a law voted on by the people The iustitium, on the contrary, just as the modern state of emergent 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 emergency. – 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 t an anomy.

3. It is precisely in this perspective that we have to read the debate on the state of emergency which pitted Walter Benjamin and Carl Schmitt against each other between 1928 and 1940. The starting point of the discussion is normally located in Benjamin’s reading of Political Theology in 1923, and in the many citations from Schmitt’s theory of sovereignty that appeared in The Origin of German Tragic Drama. Benjamin’s acknowledging of Schmitt’s 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 Schmitt’s theory of sovereignty can be read as the response to Benjamin’s 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 Schmitt’s doctrine of sovereignty can be considered as a response to Benjamin’s critique. The state of emergency 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 emergency is established, it always finds itself included in the law. The state of emergency is thus the means invented by Schmitt to respond to Benjamin’s 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 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 realize that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against Fascism.”

That the state of emergency 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 emergency, 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 Schmitt’s theory of the state of emergency breaks down.

In this perspective, the distinction proposed by Benjamin between – an effective state of emergency and a fictitious state of emergency 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 emergency which professes to be governed by law to be fictitious.

Benjamin reformulates the opposition in order to turn it against Schmitt: once the possibility of a state of emergency, in which the exception and the norm are temporally and spatially distinct, has fallen away, what becomes effective is the state of emergency 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 emergency 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 re-actualize a real historical situation of anomy. The ambiguous connection between law and anomy is thus brought to light: the state of emergency 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 emergency. 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 emergency 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?

The A Brief History of the State of Exception

munsal — Sat, 11 Jul 2009 23:11:01 +0000

Giorgio Agamben

An excerpt from State of Exception

FRANCE

We have already seen how the state of siege had its origin in France during the Revolution. After being established with the Constituent Assembly’s decree of July 8, 1791, it acquired its proper physiognomy as état de siège fictif or état de siège politique with the Directorial law of August 27, 1797, and, finally, with Napoleon’s decree of December 24, 1811. The idea of a suspension of the constitution (of the “rule of the constitution”) had instead been introduced, as we have also seen, by the Constitution of 22 Frimaire Year 8. Article 14 of the Charte of 1814 granted the sovereign the power to “make the regulations and ordinances necessary for the execution of the laws and the security of the State”; because of the vagueness of the formula, Chateaubriand observed “that it is possible that one fine morning the whole Charte will be forfeited for the benefit of Article 14.” The state of siege was expressly mentioned in the Acte additionel to the Constitution of April 22, 1815, which stated that it could only be declared with a law. Since then, moments of constitutional crisis in France over the course of the nineteenth and twentieth centuries have been marked by legislation on the state of siege. After the fall of the July Monarchy, a decree by the Constituent Assembly on June 24, 1848, put Paris in a state of siege and assigned General Cavaignac the task of restoring order in the city. Consequently, an article was included in the new constitution of November 4, 1848, establishing that the occasions, forms, and effects of the state of siege would be firmly set by a law. From this moment on, the dominant principle in the French tradition (though, as we will see, not without exceptions) has been that the power to suspend the laws can belong only to the same power that produces them, that is, parliament (in contrast to the German tradition, which entrusted this power to the head of state). The law of August 9, 1849 (which was partially restricted later by the law of April 4, 1878), consequently established that a political state of siege could be declared by parliament (or, additionally, by the head of state) in the case of imminent danger to external or internal security. Napoleon III had recourse several times to this law and, once installed in power, he transferred, in the constitution of January 1852, the exclusive power to proclaim a state of siege to the head of state. The Franco-Prussian War and the insurrection of the Commune coincided with an unprecedented generalization of the state of exception, which was proclaimed in forty departments and lasted in some of them until 1876. On the basis of these experiences, and after MacMahon’s failed coup d’état in May 1877, the law of 1849 was modified to establish that a state of siege could be declared only with a law (or, if the Chamber of Deputies was not in session, by the head of state, who was then obligated to convene parliament within two days) in the event of “imminent danger resulting from foreign war or armed insurrection” (law of April 3, 1878, Art. 1).

World War One coincided with a permanent state of exception in the majority of the warring countries. On August 2, 1914, President Poincaré issued a decree that put the entire country in a state of siege, and this decree was converted into law by parliament two days later. The state of siege remained in force until October 12, 1919. Although the activity of parliament, which was suspended during the first six months of the war, recommenced in January 1915, many of the laws passed were, in truth, pure and simple delegations of legislative power to the executive, such as the law of February 10, 1918, which granted the government an all but absolute power to regulate by decree the production and trade of foodstuffs. As Tingsten has observed, in this way the executive power was transformed into a legislative organ in the material sense of the term. In any case, it was during this period that exceptional legislation by executive [governativo] decree (which is now perfectly familiar to us) became a regular practice in the European democracies.

Predictably, the expansion of the executive’s powers into the legislative sphere continued after the end of hostilities, and it is significant that military emergency now ceded its place to economic emergency (with an implicit assimilation between war and economics). In January 1924, at a time of serious crisis that threatened the stability of the franc, the Poincaré government asked for full powers over financial matters. After a bitter debate, in which the opposition pointed out that this was tantamount to parliament renouncing its own constitutional powers, the law was passed on March 22, with a four-month limit on the government’s special powers. Analogous measures were brought to a vote in 1935 by the Laval government, which issued more than five hundred decrees “having force of law” in order to avoid the devaluation of the franc. The opposition from the left, led by Léon Blum, strongly opposed this “fascist” practice, but it is significant that once the Left took power with the Popular Front, it asked parliament in June 1937 for full powers in order to devalue the franc, establish exchange control, and impose new taxes. As has been observed, this meant that the new practice of legislation by executive [governativo] decree, which had been inaugurated during the war, was by now a practice accepted by all political sides. On June 30, 1937, the powers that had been denied Blum were granted to the Chautemps government, in which several key ministries were entrusted to nonsocialists. And on April 10, 1938, Édouard Daladier requested and obtained from parliament exceptional powers to legislate by decree in order to cope with both the threat of Nazi Germany and the economic crisis. It can therefore be said that until the end of the Third Republic “the normal procedures of parliamentary democracy were in a state of suspension.” When we study the birth of the so-called dictatorial regimes in Italy and Germany, it is important not to forget this concurrent process that transformed the democratic constitutions between the two world wars. Under the pressure of the paradigm of the state of exception, the entire politico-constitutional life of Western societies began gradually to assume a new form, which has perhaps only today reached its full development. In December 1939, after the outbreak of the war, the Daladier government obtained the power to take by decree all measures necessary to ensure the defense of the nation. Parliament remained in session (except when it was suspended for a month in order to deprive the communist parliamentarians of their immunity), but all legislative activity lay firmly in the hands of the executive. By the time Marshal Pétain assumed power, the French parliament was a shadow of itself. Nevertheless, the Constitutional Act of July 11, 1940, granted the head of state the power to proclaim a state of siege throughout the entire national territory (which by then was partially occupied by the German army).

In the present constitution, the state of exception is regulated by Article 16, which De Gaulle had proposed. The article establishes that the president of the Republic may take all necessary measures “when the institutions of the Republic, the independence of the Nation, the integrity of its territory, or the execution of its international commitments are seriously and immediately threatened and the regular functioning of the constitutional public powers is interrupted.” In April 1961, during the Algerian crisis, De Gaulle had recourse to Article 16 even though the functioning of the public powers had not been interrupted. Since that time, Article 16 has never again been invoked, but, in conformity with a continuing tendency in all of the Western democracies, the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government.

GERMANY

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 Hitler’s 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 threatened in the territory of the Reich,” granted the emperor the power to declare a part of the Reich to be in a state of war (Kriegszustand), whose conditions and limitations followed those set forth in the Prussian law of June 4, 1851, concerning 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 which this presidential power was to be exercised. Since that law was never passed, the president’s 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 d’état as did the Weimar Constitution.”

Save for a relative pause between 1925 and 1929, the governments of the Republic, beginning with Brüning’s, 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 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 government had recourse to Article 4 to cope with the fall of the mark, thus confirming the modern tendency to conflate politico-military and economic crises.

It is well known that the last years of the Weimar Republic passed entirely under 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 functioning. In July 1930, the Brüning government was put in the minority, but Brüning did not resign. Instead, President Hindenburg granted him recourse to Article 48 and dissolved the Reichstag. From that moment on, Germany in fact ceased to be a parliamentary republic. Parliament met only seven times for no longer than twelve months in all, 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, Hindenburg—reelected president over Hitler and Thälmann—forced Brüning to resign and named the centrist von Papen to his post. On June 4, the Reichstag was dissolved and never reconvened until the advent of Nazism. On July 20, a state of exception was proclaimed in the Prussian territory, and von Papen was named Reich Commissioner for Prussia—ousting Otto Braun’s 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;” but the end of the Weimar Republic clearly demonstrates that, on the contrary, a “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 Federal Republic did not mention the state of exception. Nevertheless, on June 24, 1968, the “great coalition” of Christian Democrats and Social Democrats passed a law for the amendment of the constitution (Gesetz zur Ergänzung des Grundgesetzes) 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 defend the “liberal-democratic constitution.” By this point, protected democracy had become the rule.

SWITZERLAND

On August 3, 1914, the Swiss Federal Assembly granted the Federal Council “the unlimited power to take all measures necessary to guarantee the security, integrity, and neutrality of Switzerland.” This unusual act—by virtue of which a non-warring state granted powers to the executive that were even vaster and vaguer than those received by the governments of countries directly involved in the war—is of interest because of the debates it provoked both in the assembly itself and in the Swiss Federal Court when the citizens objected that the act was unconstitutional. The tenacity with which on this occasion the Swiss jurists (nearly thirty years ahead of the theorists of constitutional dictatorship) sought (like Waldkirch and Burckhardt) to derive the legitimacy of the state of exception from the text of the constitution itself (specifically, Article 2, which read, “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order”), or (like Hoerni and Fleiner) to ground the state of exception in a law of necessity “inherent in the very existence of the State,” or (like His) in a juridical lacuna that the exceptional provisions must fill, shows that the theory of the state of exception is by no means the exclusive legacy of the antidemocratic tradition.

ITALY

In Italy the history and legal situation of the state of exception are of particular interest with regard to legislation by emergency executive [governativi] decrees (the so-called law-decrees). Indeed, from this viewpoint one could say that Italy functioned as a true and proper juridico-political laboratory for organizing the process (which was also occurring to differing degrees in other European states) by which the law-decree “changed from a derogatory and exceptional instrument for normative production to an ordinary source for the production of law”. But this also means that one of the essential paradigms through which democracy is transformed from parliamentary to executive [governamentale] was elaborated precisely by a state whose governments were often unstable. In any case, it is in this context that the emergency decree’s pertinence to the problematic sphere of the state of exception comes clearly into view. The Albertine Statute (like the current Republican Constitution) made no mention of the state of exception. Nevertheless, the governments of the kingdom resorted to proclaiming a state of siege many times: in Palermo and the Sicilian provinces in 1862 and 1866, in Naples in 1862, in Sicily and Lunigiana in 1894, and in Naples and Milan in 1898, where the repression of the disturbances was particularly bloody and provoked bitter debates in parliament. The declaration of a state of siege on the occasion of the earthquake of Messina and Reggio Calabria on December 28, 1908 is only apparently a different situation. Not only was the state of siege ultimately proclaimed for reasons of public order—that is, to suppress the robberies and looting provoked by the disaster—but from a theoretical standpoint, it is also significant that these acts furnished the occasion that allowed Santi Romano and other Italian jurists to elaborate the thesis (which we examine in some detail later) that necessity is the primary source of law.

In each of these cases, the state of siege was proclaimed by a royal decree that, while not requiring parliamentary ratification, was nevertheless always approved by parliament, as were other emergency decrees not related to the state of siege (in 1923 and 1924 several thousand outstanding law-decrees issued in the preceding years were thus converted into law). In 1926 the Fascist regime had a law issued that expressly regulated the matter of the law-decrees. Article 3 of this law established that, upon deliberation of the council of ministers, “norms having force of law” could be issued by royal decree “(1) when the government is delegated to do so by a law within the limits of the delegation, and (2) in extraordinary situations, in which it is required for reasons of urgent and absolute necessity. The judgment concerning necessity and urgency is not subject to any oversight other than parliament’s political oversight.” The decrees provided for in the second clause had to be presented to parliament for conversion into law; but parliament’s total loss of autonomy during the Fascist regime rendered this condition superfluous.

Although the Fascist governments’ abuse of emergency decrees was so great that in 1939 the regime itself felt it necessary to limit their reach, Article 77 of the Republican Constitution established with singular continuity that “in extraordinary situations of necessity and emergency” the government could adopt “provisional measures having force of law,” which had to be presented the same day to parliament and which went out of effect if not converted into law within sixty days of their issuance.

It is well known that since then the practice of executive [governamentale] legislation by law-decrees has become the rule in Italy. Not only have emergency decrees been issued in moments of political crisis, thus circumventing the constitutional principle that the rights of the citizens can be limited only by law (see, for example, the decrees issued for the repression of terrorism: the law-decree of March 28, 1978, n. 59, converted into the law of May 21 1978, n. 191 [the so-called Moro Law], and the law-decree of December 15, 1979, n. 625, converted into the law of February 6, 1980, n. 15), but law-decrees now constitute the normal form of legislation to such a degree that they have been described as “bills strengthened by guaranteed emergency.” This means that the democratic principle of the separation of powers has today collapsed and that the executive power has in fact, at least partially, absorbed the legislative power. Parliament is no longer the sovereign legislative body that holds the exclusive power to bind the citizens by means of the law: it is limited to ratifying the decrees issued by the executive power. In a technical sense, the Italian Republic is no longer parliamentary, but executive [governamentale]. And it is significant that though this transformation of the constitutional order (which is today underway to varying degrees in all the Western democracies) is perfectly well known to jurists and politicians, it has remained entirely unnoticed by the citizens. At the very moment when it would like to give lessons in democracy to different traditions and cultures, the political culture of the West does not realize that it has entirely lost its canon.

ENGLAND

The only legal apparatus in England that is comparable to the French état de siège goes by the term martial law; but this concept is so vague that it has been rightly described as an “unlucky name for the justification by the common law of acts done by necessity for the defence of the Commonwealth when there is war within the realm.” This, however, does not mean that something like a state of exception could not exist. In the Mutiny Acts, the Crown’s power to declare martial law was generally confined to times of war; nevertheless, it necessarily entailed sometimes serious consequences for the civilians who found themselves factually involved in the armed repression. Thus Schmitt sought to distinguish martial law from the military tribunals and summary proceedings that at first applied only to soldiers, in order to conceive of it as a purely factual proceeding and draw it closer to the state of exception: “Despite the name it bears, martial law is neither a right nor a law in this sense, but rather a proceeding guided essentially by the necessity of achieving a certain end.”

World War One played a decisive role in the generalization of exceptional executive [governamentali] apparatuses in England as well. Indeed, immediately after war was declared, the government asked parliament to approve a series of emergency measures that had been prepared by the relevant ministers, and they were passed virtually without discussion. The most important of these acts was the Defence of the Realm Act of August 4, 1914, known as DORA, which not only granted the government quite vast powers to regulate the wartime economy, but also provided for serious limitations on the fundamental rights of the citizens (in particular, granting military tribunals jurisdiction over civilians). The activity of parliament saw a significant eclipse for the entire duration of the war, just as in France. And in England too this process went beyond the emergency of the war, as is shown by the approval—on October 29, 1920, in a time of strikes and social tensions—of the Emergency Powers Act. Indeed, Article 1 of the act stated that

if at any time it appears to His Majesty that any action has been taken or is immediately threatened by any persons or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation (hereinafter referred to as a proclamation of emergency), declare that a state of emergency exists.

Article 2 of the law gave His Majesty in Council the power to issue regulations and to grant the executive the “powers and duties…necessary for the preservation of the peace,” and it introduced special courts (“courts of summary jurisdiction”) for offenders. Even though the penalties imposed by these courts could not exceed three months in jail (“with or without hard labor”), the principle of the state of exception had been firmly introduced into English law.

UNITED STATES

The place—both logical and pragmatic—of 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 “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.”

Both of these problems reach their critical threshold with the Civil War (1861–1865). 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.

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.”

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 crisis—broad 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 country—a 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 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 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).

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.