Global war and the state of exception

As David Miranda's recent detention illustrates, where states once introduced exceptional legislative measures in times of crisis, the law has now been rendered an instrument for a permanent state of war. 

Rod Jones
8 October 2013

On the 22nd of July the 28 members of the European Union unanimously agreed to define the military wing of Hezbollah a terrorist organization citing the group’s alleged involvement in a terrorist attack on Israeli tourists in the Bulgarian resort of Burgas last July, which left 6 people dead. Hezbollah’s military support for the Assad regime in Syria was also a factor. The UK in particular had been pushing hard to bring the EU in line with those countries - Israel, the UK, the US and the Netherlands - who had already put the group on their terrorist blacklists.

The intention was, as Foreign Secretary William Hague said, `to show that we are united and strong in facing terrorism’. Robert Fisk, on the other hand, dismissed the whole affair as an empty piece of political grandstanding. Freezing Hezbollah’s European assets, Fisk argued, would have little or no effect. Trying to maintain some distinction between the two wings of Hezbollah by keeping a channel of communication open to the political arm is patently absurd. And it is anyway inconceivable that the EU would stop talking to ‘the bad guys’ (Israel’s position notwithstanding) especially if national interests are involved. As Fisk’s rather weary and satirical tone makes clear, the decision has to be seen for what it is - part of the familiar diplomatic manoeuvring that underpins any conflict.

What makes this more than just the stock-in-trade of realpolitik is the uncoupling of the binary which previously separated war from peace. Now the threat posed by the spectral figure of the global terrorist is deemed sufficiently serious to perpetually trigger the permanent state of emergency which has become such a familiar and unremarked feature of our every-day lives. In these circumstances the ‘war on terror’ is a war without a foreseeable end, which must then be indistinguishable from the kind of peace that it engenders: not peace as the absence of war, but peace which must now always take war into account. A war-determined definition of peace; pacification or peace keeping, or peace under the conditions imposed by the security state.

It used to be the case that war was the guarantor of peace according to the logic of deterrence which required the infinite preparation for war to make it effective. But now the relationship between the two is entirely reversed. Where war once determined the outcome of the decision about whether to go to war based either on an assessment of the balance of military power or more negatively on rational discussions about its relative cost, now it is peace which appears to be the continuation of war by other means understood as the procedural condition inherent to war. Peace now doesn’t just condition war but it does so as a process of making peace in war.

The EU decision to make an exception of Hezbollah exemplifies such a procedure. The EU’s actions have to be understood as part of the wider process of capital restructuring in global terms (globalization) which utilises war as the preferred response to the problems thrown up by this process as the old system based on nation states begins to disintegrate. As a major player in this process, the EU’s declaration of war against Hezbollah, understood as one such problem to be overcome, is essential to the attainment of this new global order. Peace as a permanent state of exception functions according to the jurisdiction of never-ending war that it sets in motion.

In times of crisis governments have always introduced exceptional legislative measures on the back of declaring states of emergency in response to an external threat and to the threat posed by serious civil unrest. The Defence of the Realm Act known as DORA introduced in the UK in 1914, for example, not only gave the government sweeping powers over the economy but seriously limited the fundamental rights of the individual citizen. Much the same thing happened during World War II when the Emergency Powers (Defence) Act 1939 gave wide powers to the state to regulate every aspect of daily life in the UK.

Internment without trial for terrorist suspects during ‘The Troubles’ in Northern Ireland during the 1970s both represents a continuation of those policies and a step change. The Diplock Courts established shortly after dispensed with jury trials and replaced them with hearings in front of a single judge, who would accept a confession as proof of guilt without adequate safeguards as to either the standard of proof or against the possibility that it was extracted by means of torture or degrading or inhuman treatment. These measures represent a tendency towards something else: what Giorgio Agamben has identified as ‘the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense)’. The procedural conditions of exception thought essential to the task of waging the long war against terrorism required an essential shift away from more familiar declarations of emergency. For Agamben ‘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’.

The use of piecemeal exception legislation driven by security imperatives has become commonplace in the UK. Recent UK law is littered with such examples. Discussing British involvement in the extraordinary rendition programme to extradite terrorist suspects to a third country for interrogation, Ian Cobain has drawn attention to what he describes as, `a little known piece of legislation’, namely Section 7 of the 1994 Intelligence Services Act entitled Authorisation of Acts Outside the British Isles which states that, ‘UK criminal and civil law is disapplied from any British intelligence officer, or any other authorised person, who commits a crime – any crime whatsoever – as long as it is committed outside the UK and the Secretary of State has authorised that crime’. This, as a number of commentators at the time pointed out, ‘amounts to a licence to kill’.

Apart from continuing tensions between the UK government and the European Court’s upholding of the European Convention on Human Rights which increased markedly after the Terrorist Act came in to force in 2000, perhaps the Justice and Security Act 2013 currently going through Parliament is causing most concern in the legal profession and among human rights groups. The Act proposes to provide for the setting up of closed material procedures in relation to certain civil proceedings to prevent the making of court orders for the disclosure of what the government deems to be ‘sensitive information’, as well as to grant public interest immunity, in the manner of a military tribunal, this would allow one litigant to refrain from disclosing evidence to other litigants where disclosure would be damaging to ‘public interest’.

The routine use of sovereignty as a state of exception, at least by the UK government, signifies a good deal more than the fact of its readiness to invoke exceptional powers in response to the permanent state of emergency which it had initially engineered in response to Northern Ireland and continued to invoke through the 1980’s and 1990’s. The state of exception licenses the law to transgress its own limits so that the imposition of law becomes the imposition of its own exception. This creates not so much the prospect of an endlessly expanding in the sense of an increasingly intrusive law, which begs the question as to the distinction between the law and what lies outside it, but rather what Agamben calls ‘a zone of indistinction’ between law and fact, inside and outside, nature and right. Based on the exception, law achieves an empty potentiality which makes it indistinguishable from life. In which case there can be no distinction between staying within the law and breaking it. The law becomes emptied of content in order to become infinitely powerful in the sense that nothing could be presented that could effectively stand against it.

Lengthy EU deliberations about Hezbollah that required the organization to be split into two distinct entities point precisely to the presence of this zone of indistinction between inside and outside; friend and enemy. Sovereignty is about the power to decide on the state of exception, as the authoritarian nature of the EU decision to ‘downgrade to zero’ Hezbollah fighters makes abundantly clear. War and peace are now about the power of the decision that categorizes, which can only be the decision of power in a world flattened into a state of permanent exception with no prospect of political redress. To opt for war, as the EU does by making an enemy of Hezbollah, is to decide against politics without war; that is, neither war as politics by other means, nor even politics as war by other means - that might have chosen otherwise. 

Not only is the decision of power as exercised in the ‘war on terror’ authoritarian in the manner described but it is always arbitrary because it is already stripped of that rational content that would make it something more than the blind imposition of the decision by violent means. The state of exception of never-ending war proves the rule. Fisk demonstrates why the EU decision cannot be anything other than arbitrary precisely because comparable acts of terror have been carried out on the other side by the ‘good guys’. He tellingly recalls how a ‘spooky organisation used real British passports to engineer a political assassination in the United Arab Emirates not long ago, a nation whose “militant wing” will go on meeting EU diplomats: Israel’. He goes on, ‘I can think of one political leader who signs off on casual executions. He uses a wondrous machine called a drone and his name is Obama and we’re surely not going to refuse to talk to his “military wing” when our “militant staff” is fighting alongside his “militant wing” in Afghanistan’. How else can we describe these reciprocal terrorist actions, or better, this state of hyper-terrorism, other than as a global civil war which is moving inexorably towards Hobbes’ ‘state of nature’: a war of all against all? And now without even the possibility of an appeal to the law which stands outside it because the state of exception always has prior claim within the zone of indistinction.

The recent detention of David Miranda at Heathrow airport has attracted widespread condemnation as an abuse of power under Schedule 7 of The Terrorist Act 2001. An editorial in The Guardian (20 August) headlined, ‘A betrayal of trust and principle’, described Miranda’s detention as ‘an attempt to intimidate journalism in one of the zoned-off jurisdictional spaces where such a thing can happen without legal redress.’ But what critics have failed sufficiently to recognize is that Schedule 7 is designed specifically to operate in those ‘zoned-off jurisdictional spaces’ where normal civil law and its safeguards are suspended so that the police can bring the full force of the exception represented by Schedule 7 to bear.

The detainee has no right to receive legal advice or to remain silent but must give any information requested as well as surrender his or her passport and say whether they have documents specified by the police which, again they must surrender. The detainee is also subject to sweeping powers of search and detention of property which can be held for up to seven days or while the police believe it may be needed as evidence. Finally, failure to comply with this procedure or to contravene a prohibition imposed by the authorities or in any way obstruct the inquiry can result in a prison sentence. According to the logic of the state of exception Schedule 7 suspends the law in order better to apply it.

Those critics who regard the legal powers used to detain and interrogate Miranda for just short of the maximum permitted nine hours as disproportionate, excessive and therefore inappropriate and an abuse of such powers, who further believe that he could have been detained and questioned under other laws which would have better safeguarded his rights, are missing the real danger posed by these zones of indistinction.

Where, within the normal juridical order, the law limits itself to deciding the case based on the presentation of the given facts of the situation, now sovereign power produces the situation as a state of exception in which law and fact are indistinguishable. In these circumstances where no crime needs to be committed, questions of guilt and innocence become completely irrelevant and make no sense. It is not a matter of whether Miranda is, in fact, a ‘terrorist suspect’ or not but that anyone detained within the space where Schedule 7 has full sway without even the prior need for suspicion by the authorities becomes something else by being a detainee under terrorist legislation. It isn’t just that the 69,000 people who have already been detained at ports and airports under this legislation have been subject to temporary internment without trial but that their status as citizens is undermined as a consequence.

George Orwell’s dystopian novel ‘1984’ describes a world in which the whole of civil society has become entirely enmeshed within and indistinguishable from the law based on the state of exception. Law has become naked executive power directed towards some higher realm we cannot understand because it has been abstracted to the point of seeming to be little more than self interest. In pursuit of this sacred goal life itself is reduced to bare existence and becomes expendable. Politics, which can only flourish in the gap between law and life, and as the principal means of keeping them apart, is finally eliminated. If war has been the condition of truth of every political order throughout history, then Orwell confronts us with this condition taken to the limit of its possibility – a world where violence is unconditional because even the memory of what could oppose it has been almost entirely erased. As Thomas Pynchon has pointed out, it will take more than moral superiority or good intentions or clean living to prevent this state of affairs from becoming a reality. 

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