Ethics and Global Affairs Term Paper

The Permanent State of Emergency: the Exception Becoming the Norm
Sean P. Maguire
Ethics and Global Affairs
Dr. Ariane Chebel d‟Appollonia
11 May 2015

Each morning millions of American children begin their school day by reciting the
pledge of allegiance. A daily reminder of the principles that their country holds dear: liberty and
justice for all. It is a daily echoing of the truths held self-evident by the nation‟s Founding
Fathers as evidenced by the Declaration of Independence: all men are created equal and endowed
with the inalienable rights of life, liberty, and the pursuit of happiness. In of itself this is an
innocent affair but the fact of the matter is that the America these children are pledging their
allegiance to no longer exists. The America of today is a radical departure from the
constitutionally based democracy its founders had intended. It has steadily departed from a form
of government based off the Constitution to a form of governance known as the permanent state
of emergency. The permanent state of emergency is a form of governance, I will argue, that
exists apart from the constitutionally grounded democracy our founding fathers intended. It has
existed since the beginning of the Cold War at the expense of the Constitution and in turn the
rights of the American people and subsequently presents a greater danger to America then the
emergencies that were used to usher in this state. I will argue my position through the lens of the
Paradox of Theseus‟ Ship, showing how America has been transformed from a constitutionally
based democracy, based off of the division of power and protection of rights, into the greatest
threat to the rights that the American government was founded on. I will show how throughout
American history this transformation has both gradually and expediently occurred and why this
transformation matters.
The paradox of Theseus‟ Ship, as told by the Greek historian Plutarch, reads as follows:
“The ship wherein Theseus and the youth of Athens returned from Crete had thirty oars, and was
preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away
the old planks as they decayed, putting in new and stronger timber in their places, in so much

that this ship became a standing example among the philosophers, for the logical question of
things that grow; one side holding that the ship remained the same, and the other contending that
it was not the same”1
My argument here is of the position that the ship is not the same; the
permanent state of emergency has so radically changed our form of governance that it is no
longer the same America which the emergency was declared to defend. Therefore the permanent
state of emergency should be dismantled as it only exists in the absence of the application of the
Constitution.
When speaking of the state of emergency, it would be prudent to recognize that we are in
actuality dealing with a state of exception. At its most base level, “exception” suggests a limit:
“on a rule to fulfill its mandate; on reason, to make sense; on logic, to be consistent with itself.
Concomitantly it suggests transcendence: the omnipresence of the ineffable, a lurking regime of
permanent negation. The exception is everything but: the non-law, the state of emergency, the
other, the negation of what-holds-in-all-circumstances…the exception describes the space where
law doesn‟t apply. The exception if fulfilled through non-application”.2
It is intended to be
understood as the unrepeated and unrepeatable.3
In our context, that which is not being applied,
the law which is not being upheld is the Constitution of the United States of America. The
Constitution of the United States is the document upon which the Republic was founded. Its
principles of governance find their patronage in the works of Locke, adhering to the notion that
law‟s ultimate protection rest in morality; that laws adhere to a system of justice, a commitment
to dignity and equal protection. Laws that do not do the people justice and defend liberty should
1
Plutarch. Theseus. http://classics.mit.edu/Plutarch/theseus.html
2
Rebecca Gould. Laws, Exceptions, Norms: Kierkegaard, Schmitt, and Benjamin on the Exception. Telos Spring
2013, 77.
3
Gould. Laws, Exceptions, Norms, 82.

be met with revolution.4
This was the case with the American Revolution and the establishing of
a constitutionally based democracy: the establishment of a government whose laws adhered to
this higher notion of morality. This higher notion, these liberties, would be made law by the
young republic‟s Constitution, thus ensuring a form of government that would uphold dignity
and equal protection.
Locke‟s tradition carries on a conceptualization of the law as it was understood by Plato.
Plato understood laws to be personal conscience merged with the social good; an established
framework for a balance of power, wherein moderation is stressed and the individuals welfare is
tied to the collective‟s well-being.5
This concept is evidenced by the inclusion of the Bill of
Right in the Constitution, a collective safeguard of our collective liberties to ensure that they
cannot be infringed upon against any individual by the government; while moderation could be
seen in the system of checks and balances as it was envisioned by the Founding Fathers.
Therefore, when we speak of exception in the American context we are discussing a departure
from the Constitution: a departure from the government safeguarding and upholding our
collective liberties.
Why would the government depart from the upholding of its founding principles? The
answer has already been provided for us by Gould: a state of emergency. This instance was of
such concern to the founding fathers that it was provisioned for in the Constitution. Article I of
the Constitution established the criteria for the suspension of rights, wherein “„[t] he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it‟ but does not specify which authority has the
4
Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror. Princeton University Press, 2005, 43.
5
Gould. Laws, Exceptions, Norms, 78.

jurisdiction to decide on the suspension (even though prevailing opinion and the context of the
passage itself lead one to assume that the clause is directed at Congress and not the president).
The second point of conflict lies in the relation between another passage of Article i (which
declares that the power to declare war and to raise and support the army and navy rests with
Congress) and Article 2, which states that „[t]he President shall be Commander in Chief of the
Army and Navy of the United States‟ ”.6
Thus, in the American context, the government can
engage in the suspension of liberties in these certain stipulated instances where the public safety
may require it. However, the Constitution was ambiguous over which branch of government has
the authority to decide that the prerequisites for an emergency had been met and then engage in
the suspension of liberties. This ambiguity was the basis for the power grab by the executive
branch that has led the permanent state of emergency today.
Before we dig further into the state of exception and its permanent application in
America, we should step back and examine the state of exception/emergency further to gain
better understanding of why it is viewed as undesirable. Ignatieff raised several questions over
states of emergency in how they fundamentally challenge the rule of law that are as follows: if
laws can be abridged and liberties suspended in an emergency, what remains of their legitimacy
in times of peace; if laws are rules, and emergencies make exceptions to these rules, how can
their authority survive once exceptions are made; and what remains of the status of human rights
if they can be abridged in times of public danger?7
The answer is the permanent state of
emergency. Overtime the exception becomes the norm and the old norm is entirely replaced. The
6
Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press, 2005.Kindle Edition. Ch. 1.7.
7
Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 25.

conceptualization and justification of this transformation can be found in the works of the
Weimar legal theorist Carl Schmitt. Schmitt‟s transformation from framing the president as the
ultimate protector of the Constitution to becoming an apologist for Hitler is a stark example, but
it serves a purpose. It demonstrates how easy it is for the exception to become the norm once it is
made, how easy it is to continue the train of logic that supreme authority must rest solely in the
executive. Furthermore, Schmitt‟s justifications for the exception are the inherent arguments for
a state of emergency.
We have already established that a state of exception can be understood as a state of
emergency: a timeframe wherein the law does not apply. Schmitt provides us with the reasoning
for why a constitutionally based government would seek the non-application of the law. Broken
down, Schmitt provides governments with a very simple justification: the state of exception
separates the norm from its application in order to make its application possible.8
You must
break the rule in the moment in order to save it in the long term. Schmitt was writing in an
intense period of time; 1920s Weimar Germany, where the young constitutional democracy was
facing collapse at the hands of terrorist violence. Schmitt saw the government‟s ability to
respond to terrorist violence hampered by the constitution. For Schmitt, the exception was an
absolute necessity: constitutional regimes cannot hope to save themselves from attack unless
they withdraw protections from those who seek to do the constitution harm. However, in order to
justify the exception Schmitt did not view laws as Locke did. They were not absolutes, but the
outcomes of political agreements and as such enforcement of these laws was solely dependent on
the moment at hand. Rights should be suspended in times of emergency if they interfere with the
8
Agamben, Giorgio. State of Exception. Ch. 2.2.

overall survival of the government, as rights were only political agreements to begin with.9
It is
not entirely difficult to draw the parallels between what Schmitt was facing and that America is
facing today. Schmitt‟s slide from supporting expanded use of executive prerogative at the
expense of rights in times of emergency to outright defending Hitler highlight the absolute
danger that states of emergency present: once a constitutional order sacrifices its commitment to
liberty, it quickly sacrifices everything else.10
This is the case with the transformation that has
taken place in America: we sacrificed our commitment to liberty (the basis of our government)
and in turn gave over the system of checks and balances built to hold this commitment in place.
In turn it was replaced with the permanent state of emergency: governance through executive
prerogative and might equaling right, not rights prevailing over might.
The issues at hand with the state of emergency and the Constitution came to a headway
with the outbreak of the Civil War in 1861. While temporary in nature, the Civil War defined the
dangers of the permanent state of emergency and why it is antithetical to a constitutionally based
democracy. The outcome of the Civil War need be measured by more than the preservation of
the Union; it put to rest the ambiguity of Article I of the Constitution over where supreme
authority lies in states of emergency: the executive. From the very beginning of the Civil War,
President Lincoln expanded the use of executive prerogative far beyond its previously
established boundaries and made permanent gains for the power of the executive branch in times
of emergency. The two decisions of President Lincoln‟s that are the main takeaways from the
Civil War are the raising of an army without the approval of Congress and the suspension of
habeas corpus. On April 15th
, 1861 President Lincoln gave orders for the raising of an army of
seventy-five thousand men without the approval of Congress, an act running entirely counter to
9
Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 41-42.
10

Article I of the Constitution. Congress did not convene until July 4th
of that year and during those
ten weeks President Lincoln held absolute authority over the actions of the United States
government. On April 27th
, President Lincoln selectively suspended habeas corpus between
Washington D.C. and Philadelphia. This action, once again, was taken without the approval of
Congress.11
By 1863, President Lincoln had suspended habeas corpus throughout the United
States and instituted indefinite detention for opponents of the war. In defense of his actions,
President Lincoln gave birth to the justification of the state of emergency in the American
context. Responding to his critics, President Lincoln argued that, “The Constitution is not, in its
application, in all respects the same, in case of rebellion or invasion involving the public safety,
as it is in time of profound peace and public security...I can [not] be persuaded that a particular
drug is not good medicine for a sick man, because it can be shown not to be good for a well
one…I am [not] able to believe that a man could contract so strong an appetite for emetics during
temporary illness as to persist in feeding upon them during the remainder of his healthful life”.12
In the face of the assumption of this supreme authority by President Lincoln, Congress did
nothing but give it legislative backing. President Lincoln claim of legality not being an issue in
the face on a pressing emergency was affirmed by Congress. This decision made it clear that in
time of emergency supreme authority would be given over to the executive branch and thus the
system of checks and balances that ensured the peoples‟ rights would be abandoned in the name
of security.13
However, this is not the only thing we should take away from the Civil War with
regards to the permanent state of emergency. President Lincoln and as submissive Congress not
11
12
13

only established the precedent of supreme authority during states of emergency being vested in
the executive, they established a precedent for what the executive prerogative was capable of in
times of emergency. Despite being proven right in the short run by the Supreme Court case of Ex
Parte Milligan in 1866, wherein the Supreme Court in uncompromising language condemned the
suspension of habeas corpus, President Lincoln‟s assessment of the appetite for his remedies
proved to be a false one. President Lincoln had established a permanent precedent for future
holders of the executive office to act upon; subsequently “when Roosevelt established a military
commission in 1942 to try German saboteurs and the case went to the Supreme Court for review,
Lincoln‟s use of military commissions was cited by the government in justification. When the
Bush administration established military tribunals to try terrorists and illegal combatants for
crimes of war and crimes against humanity, rather than putting them through the federal court
system, the Lincoln decision again figured as a precedent.”14
President Lincoln was the first
president to wield supreme authority and in doing so recognized its inherent dangers, but
juxtaposed against the collapse of the Union he viewed them as justified. Yet, this justification
lied on the notion of the return to peace, of the withdrawal of the exception and return to
repetition.
In the permanent state of emergency this is not the case, the exception becomes the norm.
The exception in the case of the United States is the selective application of the Constitution, the
document upon which the government is founded. If a government is to permanently detach
itself from its founding document can it truly be held to be the same form of government as it
was prior? Over the course of time, as the roots of the permanent state of emergency have grown
deeper and thicker, we have moved further from the constitutional democracy that this state of
14

emergency set out to defend to the point that there has been a break in the linkage and we must
view the current form of government as fundamentally different from the one established by the
Founding Fathers. This change did not happen overnight. Its roots begin in the ambiguity of the
wording of Article I of the Constitution; its applicability established by President Lincoln; and its
test run conducted by President Wilson in World War I.
President Wilson‟s actions during World War I are generally considered to have created a
proto- permanent emergency state during which President Wilson was given supreme authority
over the United States. The powers he assumed were far greater than those of President Lincoln.
Between 1917 and 1918, Congress legislated the extension of the prerogative of the executive
through a series of acts (starting with the Espionage Act of June 1917 to the Overman Act of
May 1918), “that granted the president complete control over the administration of the country
and not only prohibited disloyal activities (such as collaboration with the enemy and the
diffusion of false reports), but even made it a crime to "willfully utter, print, write, or publish any
disloyal, profane, scurrilous, or abusive language about the form of government of the United
States.”15
Deliberate decisions were made that undermined the Constitution and the peoples‟ civil
liberties at the enlargement of the executive‟s prerogative. These newly minted Alien and
Sedition Acts led to the, “criminaliz[ing] [of] legitimate foreign policy debate over the rights and
wrongs of the conflict. Magazines advocating peace or American neutrality were banned from
the mails. Hundreds of Americans were jailed for criticizing the war or opposing military
recruitment. Government spies infiltrated, raided, and ransacked the headquarters of antiwar and
15

antimilitary organizations.”16
Furthermore, the Trading with The Enemy Act greatly expanded
the prerogative of the executive into international commerce visa vi giving the President the
ability to restrict trade during times of war. In the long term this has led to a massive expansion
of the executive prerogative that would continue to be built upon and remains a permanent
feature to this day.
The actions of President Wilson after World War I relayed the fears of the detractors of
President Lincoln‟s actions quite bluntly. The continued usage of emergency powers laid bare
two concerns: their ability to be continually applied after the stated emergency that they were
enacted to deal with ended and the issue of self-prognosis. To borrow from President Lincoln‟s
analogy we can view the continued use of the executive prerogative after the end of a stated
emergency as a form of addiction. This is evident in the creation of the permanent state of
emergency but the inner working began to take place in President Wilson‟s attempt at a proto-
emergency state post-World War I. Many of the worst abuses of the Alien and Sedition Acts did
not manifest themselves until after the end of World War I. These laws, passed without the
sunset clauses defenders of states of emergency (such as Ignatieff) cling to, were used
relentlessly by the government in the Palmer Raids of 1919-1921. Invoking fears of a communist
revolution, thousands of immigrants and suspected radicals were arrested under the Alien and
Sedition Acts. However, Americans were still extremely wary of a permanent expansion of
government power at the time and Wilson‟s attempts at permanent expansion were summarily
put to an end. The Sedition Act was repealed in 1921 and President Coolidge, a strong critic of
the Palmer Raids, was elected in 1924 on a campaign of a return to normalcy.17
However, it took
16
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs (New York: The Penguin
Press, 2012). Kindle Edition. Ch. 1.
17
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch. 1.

six years after the end of World War I for the emergency state to be put to rest. The waters had
been toed and it had been shown that a President could evoke a state of emergency during a time
of peace and expand their powers. World War I represented a break in continuity for America
going beyond the declared state of emergency: it broke a coherent foreign policy that America
does not abroad in search of monsters to destroy.18
In searching for monsters to destroy we find a
continued justification for the permanent state of emergency.
The Presidency of Franklin D. Roosevelt laid the building blocks for the permanent state
of emergency, greatly expanding the power of the presidency at the expense of the American
peoples‟ civil liberties and our shared history as a constitutional-democracy. President
Roosevelt‟s legacy would be built upon after his death by the actions of President Truman‟s
administration which institutionalized the permanent state of emergency and framed the world
through a security lens where near all authority need be invested in the executive. David C.
Unger refers to President Roosevelt as the godfather of the permanent state of emergency, a
moniker that I will demonstrate as entirely justified. President Roosevelt leaned heavily on the
tradition of war justifying an expansion in the executive‟s prerogative in his framing of his
administration‟s response to the Great Depression to justify his expansion of executive authority.
When he ascended to the Presidency in 1933, Roosevelt made it clearly known that he viewed
himself as a war-time president despite no declared war and that in the tradition of President
Lincoln he would do what he felt was necessary regardless of the approval of Congress.19
Supreme authority over the economy was vested in the Presidency, culminating with the
National Recovery Act of 1933, expanding the power of the presidency further then it had ever
reached during peace time. Viewed through the lens of the Constitution, this led to a redrawing
18
19

of the boundaries of the division of power in the government, in which the executive had
successfully expanded its prerogative into previously demarcated areas of no entry.20
This
intrusion of the executive was not contained solely in its role in the market, but also through
expanded government surveillance of citizens and foreigners prior to World War II.
Prior to entry into the war, Roosevelt ordered the FBI to monitor those whom he deemed
“subversive”. This designation was determined solely by the executive branch and the
information was directed solely there as well, without any Congressional or judicial oversight.
Thus citizens were spied on by their government due to their usage of their First Amendment
rights. All of this was done under the pretext of the coming war, but like Adams before him
Roosevelt used the law to spy on and curtail the rights of his critics.21
Thus under the pretext of
an emergency President Roosevelt skirted the first and fourth amendment rights of his
opponents. The importance of this decision cannot be stressed enough as it demonstrates that
many of the practices that the general public is shocked to learn the government is engaging in
today have in fact been undertaken for decades. President Bush is the president most associated
with wiretaps and actions of that nature, but the practice began under Roosevelt, in peace time, in
the name of national security.22
Here we have a direct linkage over time of the permanent
emergency state: the executive assuming the authority to curtail individuals‟ fourth amendment
rights based off of their expression of their first amendment rights. A train of thought assumed
by a great deal of the general public to have begun in the aftermath of 9/11has had its roots in the
executive branch for decades and would be one of the prime abuses of executive prerogative
throughout the Cold War.
20
21
22

Thus, prior to the outbreak of World War II and the entry of the United States into the
conflict President Roosevelt had already begun to redefine the scope of both executive
prerogative and states of emergency. All of this was done at the expense of our civil liberties;
laying the groundwork for the subversion of our rights in the name of security. World War II
only accelerated this and allowed for a greater expansion of powers and abuses. The most noted
abuse is the massive detention of Japanese-Americans that took place during World War II.
President Roosevelt invoked his powers as commander in chief to create military areas anywhere
in the United States and to exclude whatever peoples he chose from those areas and relocate
them to military-run camps.23
Here again we see a train of thought running over the decades; we
can draw noticeable parallels between President Bush‟s actions of detaining thousands
immediately after 9/11 with the decision to intern Japanese-Americans after Pearl Harbor. A
breaking point is used to justify an action that would otherwise not be justifiable, but in the
established context the executive swoops into the crack and expands their authority. The
importance of precedence and replication in the permanent state of emergency cannot be stressed
enough.
World War II provided the ultimate context for the birthing of a permanent of emergency.
A “limited” national emergency, declared on September 8th
, 1939, became a permanent
emergency on May 27, 1941 all before the actual outbreak of war. Through his actions and
words during World War II President Roosevelt left no room for doubt of his belief that the
ultimate supreme authority to govern lies in the Presidency.24
However, President Roosevelt did
not live to see the actual creation of the permanent state of emergency which his actions had
seeded. That legacy would be left to President Truman in the aftermath of World War II.
23
24
Agamben, Giorgio. State of Exception. Ch. 1.7

President Truman built upon this legacy and in doing so framed and instituted the
permanent state of emergency, thus leading to a permanent capturing of the gains made in
executive authority by President Roosevelt. In his response to the changing world, President
Truman‟s, “decisions in these years created the peacetime emergency state. Unlike the wartime
emergency state, the peacetime variety has no logical termination, no moment when the
emergency clearly ends and normal constitutional procedures come back into force. A new,
security-based set of justifications for expanded presidential powers in peacetime was born.”25
President Truman‟s first action in creating the permanent emergency state was in actuality
inaction. By allowing many of the wartime emergency powers to remain on the books after
World War II emergency laws started to supersede the Constitution by the mere fact of their
continued existence. Indeed he allowed the actual declared state of emergency to continue until
1947. However, President Truman‟s main legacy in the creation of the permanent state of
emergency lies with the normalizing of certain emergency powers, the creation of institutions to
further realize these powers, and framing the permanent state of emergency in a way that was
acceptable to the American people.
I will first address the issue of framing, as it is the context that this decision established
that all other decisions flowed from. A new foreign policy approach was needed that recognized
America‟s new found role of hegemon in the western world. President Truman chose the path of
containment of the Soviet Union and communism and thus, in the tradition established by
President Wilson, America‟s foreign policy was one of absolute security based off of a perceived
foreign threat. The position established became known as the Truman Doctrine in 1947,
establishing “that the United States would provide political, military and economic assistance to
25

all democratic nations under threat from external or internal authoritarian forces. The Truman
Doctrine effectively reoriented U.S. foreign policy, away from its usual stance of withdrawal
from regional conflicts not directly involving the United States, to one of possible intervention in
faraway conflicts.”26
Our security parameter was now extended beyond our borders and our
security intrinsically tied to the state of world affairs. In order to meet these new broader set of
security concerns that justified the permanent state of emergency, new institutions needed to be
formed. The Central Intelligence Agency, the Defense Department, and the White House
National Security Council have all become pillars of the emergency state; all three were formed
in 1947.27
The Truman Doctrine and these three pillars would act as the guiding light for the
United States throughout the Cold war, with administrative adjustments along the way. Cold War
foreign policy would be determined by the executive, despite running contrary to the
Constitution which vests a majority of the common parameters of foreign policy in Congress.28
The Truman presidency established that American security would now be viewed in terms of
absolute security. The safety of the American people has always been one of the most powerful
conductors of national policy. This is not the concern at hand, as it is a recognized fact that this is
a responsibility a government commands. The concern comes with the degree of security,
security that trumps what is supposed to hold in all circumstances. Alexander Hamilton
recognized the inherent danger of viewing security in absolute terms, for in order “to be more
safe, [people] at length become willing to run the risk of being less free”.29
Thus when security is
viewed as an absolute, juxtaposed against freedom, absolute security requires the necessity of
being willing to sacrifice freedom in absolute terms as well.
26
The Truman Doctrine, 1947-1945—1952-Milestones-Office of the Historian.
https://history.state.gov/milestones/1945-1952/truman-doctrine
27
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Introduction.
28
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch.3.
29
Hamilton, Alexander. The Federalist #8. http://www.constitution.org/fed/federa08.html

Throughout the Cold War the government continued to view security in relatively
absolute terms of the permanent emergency state. However, the executive was selective in the
flexing of its emergency powers. While holding supreme authority, it held true to a concept of
ethics of emergency more in tune with those postulated by Ignatieff in dealing with terrorist
states of emergency. When supreme authority was focused inward, at any one time, it was only
the infringement of relatively smaller groups‟ rights in the name of the security of the majority
that was taking place. This is much in line with the framing of powers in a terrorist state of
emergency.30
Taking away the rights of only a few at any one given time in the name of the
security of the many is much easier to justify. However, when we analyze the actions of the
executive branch throughout the Cold War we can see an established pattern: executive
prerogative being used without reference to the Constitution and infringing upon the rights of the
people. Spanning near half a century, a detailed analysis of Cold War abuses of executive
prerogative and the dismantling of our civil liberties is beyond the scope of this paper. Therefore
I will present several examples, out of the myriad, to highlight my position:
 National Security Council document 68, NCS-68. This document detailed our
global strategy against communism, wherein any means justified the ends of
defeating communism. Actions were judged by their outcomes in this light, with
no regards given to the Constitution. NCS-68 would supersede the Constitution
as the guiding document of the government during the Cold War, thus proving
the permanent state of emergency to be a different form of government.31
30
31

 President Truman‟s bypassing Congress and the Constitution to engage in the
Korean War by labeling it a presidential “police action”. 32
 The CIA engaging and aiding in the overthrow of the government of Iran in 1953
and the government of Guatemala in 1954, without any Congressional
oversight.33
 The use of The Tonkin Gulf Resolution by Presidents Johnson and Nixon to
engage in years of warfare in Vietnam, despite no constitutionally declared war.
The President was vested with the authority to defend against all aggression. The
presidency was recognized as holding supreme authority by Congress and thus
was granted the ability to wage war from solely within the executive office.34
 President Johnson‟s use of the FBI for domestic spying on political opponents,
including Martin Luther King Jr. Once again a disregarding of fourth amendment
rights due to one‟s use of their first amendment rights.35
 The use of the CIA, most notably under the Nixon Administration, for domestic
spying on Americans.36
 President Reagan‟s ignoring of article 2, section 3 of the Constitution “to take
care that the laws are faithfully executed” by engaging in the Iran-Contra affair
by refusing to abide by the laws passed by Congress on the matter.37
These are only several examples of the litany of abuses that took place throughout the
Cold War. What is interesting in many cases is that Congress either approved of the use of
32
33
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All Costs. Ch. 4
34
35
36
37

executive prerogative or refused to adequately challenge it. With each case, the notion that
supreme authority in times of emergency belongs to the executive was enhanced. This supreme
authority was at the expense of the system of checks and balances. The system of checks and
balances was put in place to ensure the upholding of the Constitution. However, with the advent
of the Cold War the upholding of the Constitution was no longer the stated goal of the
government: the defeat of communism was. The Constitution would be held up when applicable,
but would no longer be referenced to determine what actions could be taken. The abandoning of
the Constitution as the guiding light of governance for near half a century demonstrates the clear
break between the government that was envisioned and the government in reality, the permanent
state of emergency.
With the collapse of the Soviet Union, the rational for the permanent state of emergency
no longer existed and yet the security state remained. New monsters were sought in order to
justify the permanent state of emergency and the continuation of supreme authority. Communism
may have been defeated but our first “peace-time” President in near half a century, President H.
W. Bush, declared that “even in a world where democracy and freedom have made great gains,
threats remain. Terrorism. Hostage-taking. Renegade regimes and unpredictable rulers— new
sources of instability— all require a strong and engaged America”.38
Despite lasting for
practically half a century, the Cold War was still framed with a constraint in mind: the defeat of
communism. President Bush‟s rhetoric laid bare one of the greatest fears of states of emergency;
temporary suspension have a way of becoming permanent. Measures introduced for one reason
are now used for another. The state of emergency acts as a widening wedge that finds
38

justification for its actions itself. It seeks its own monsters to destroy.39
Thus the state of
emergency was no longer tied to the threat of communism, but simply threats to America‟s
security in general. These threats were realized on the morning of September 11th
, 2001.
The War on Terror continues the long tradition of invoking war to justify an expansion of
the executive‟s authority and subsequently a decrease in civil liberties. In continuously referring
to himself as the Commander in Chief of the Army post 9/11, President Bush was making
continuous references to Presidential claims of expanded sovereign power and in turn the state of
exception that justifies this expanded power. As such, President Bush sought to normalize the
exception and have the assumption of more sovereign powers permanently shifted to the
executive.40
This expansion of power was manifested most notably in the cases of indefinite
detention/suspension of habeas corpus, the expansion of government surveillance, and
throughout all of this the dismantling of the systems of checks and balances. I will argue here
that the government‟s response, as it has been throughout the entire permanent state of
emergency, has continued the subversion of the Constitution as the basis for the United States
government. However, the expansion of the executive‟s prerogative has been more controversial
than prior expansions. Since 9/11, the government has been operating under the notion of a
terrorist state of emergency, wherein a response would entail: preventive or investigative
detention for certain detainees; changes in their right of access to counsel and lawyer-client
privilege; widening of police powers of search and seizure; increased wiretap authorizations and
other forms of surveillance.41
However, the government has abandoned the selective use of the
executive prerogative in the permanent state of emergency during the War on Terror. In doing so
39
40
Agamben, Giorgio. State of Exception. Ch. 1.7
41
Ignatieff, Michael. Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror, 26.

it has demonstrated the full capability of supreme authority vested in the executive in times of
emergency. It has shown that it is not the rights of the few versus the security of the many, but
the ugly truth that the rights of every man fall into the black-hole of the state of exception. My
reasoning is based off of two points of agreement with Ariane Chebel d‟Appollonia: the
definition of the “others” whose civil liberties are being forfeited has expanded rapidly to include
every citizen of the United States and the fact that the War on Terror is characterized in an
unending manner implies that these rights will be forfeited in perpetuity.42
The War on Terror, guided by what has been called the Bush Doctrine, is best viewed as
a 21st
Century rephrasing of the Truman Doctrine; the old monster had been vanquished and a
new one was needed in its place. The Bush Doctrine, as outlined by the administration‟s first
National Strategy for Homeland Security, listed several key strategic objectives that would guide
the administration‟s policy: preventing terrorist attacks within the United States, reducing
America‟s vulnerability to terrorism, and minimizing the damage from attacks that could
occur.43
Taken with President Bush‟s continuous self-references to the military commanding
nature of his job, what we have seen is the reiteration of security is as the number one objective
of the President. However, this begs the question of security from what exactly? There can be no
decisive moment or victory day when you are fighting an informal, or in actuality a series of
informal conflicts. Compared against previous conflicts the War on Terror offers “no comparable
prospect of victory, no conclusion, and [most importantly] no comparable restoration of
rights.”44
The questions raised by Ignatieff over the ethics of emergency need not be raised as
there is no post-emergency period in which to observe the outcomes of these questions, as the
42
Chebel d’Appollonia, Ariane. Frontiers of Fear: Immigration and Insecurity in the United States and Europe.
Cornell University Press, 2012. Kindle Edition. Conclusion.
43
Chebel d’Appollonia, Ariane. Frontiers of Fear. Ch. 3.
44
Chebel d’Appollonia, Ariane. Frontiers of Fear. Conclusion.

exception of emergency has become the norm and the upholding of our rights(visa vi the
Constitution) is permanently abandoned as the guiding principle of governance.
Addressing the nation after the attacks of 9/11, President Bush declared war not on Al-
Qaeda, but on the tactic of terror itself.45
What we have is actuality is a series of distinct and
isolated conflicts presented to the public as one continuous war, thus fulfilling the requirements
for a state of emergency.46
As the end of the conflict is continuously perceived to be beyond the
sunset, the measures enacted to deal with the conflict push beyond the sunset as well. The
continued renewal of the Patriot Act is the prime example of this issue.
The Patriot Act was implemented on October 26th
, 2001 and renewed by President
Obama on May 27th
, 2011. The law was passed in response to the terrorist attacks which took
place on 9/11, vesting greater authority in the federal government to respond and defend against
further terrorist attacks. Viewing the attacks and the subsequent War on Terror as a break in
continuity, the Patriot Act in conjunction with several other government programs sought to
expand the power of the federal government and the executive prerogative into this break. The
Patriot Act was able to be passed so quickly for two reasons: it was essentially a repackaging of
wish-lists of several government agencies, which has been turned down when presented
individually and the 1996 Antiterrorism and Effective Death Penalty Act gave the government a
framework which to work upon.47
A complete overview of the new found powers granted by the
Patriot Act is beyond the scope of this paper as they are far too extensive to list in detail.
However, a brief examination of only several sections is needed to understand why the Patriot
45
Bellamy, Alex J. Fighting Terror: Ethical Dilemmas. London: Zed Books, 2008. 50
46
Bellamy, Alex J. Fighting Terror. 70
47
Chebel d’Appollonia, Ariane. Frontiers of Fear. Ch. 3.

Act, acting as a microcosm of the permanent state of emergency, presents such a danger to
constitutional democracy:
 Section 206: The “roving John Doe wiretap provision”, which allows the
government to obtain intelligence surveillance orders without identifying anything
in the investigation. This runs contrary to the traditional, as well as legal norms,
that require the government to specifically state whom they are investigating and
for what purpose.
 Section 215: the government is authorized to obtain any “tangible thing” in
relation to a terrorism investigation. There is no longer a need to show probable or
even have a reason of suspicion. The government can investigate you based off of
your use of your First Amendment rights. Furthermore, you are never notified you
are being investigated, nor can someone forced to handover information announce
that they have done so.48
 Section 213: Permanently established the ability of the FBI to engage in “sneak
and peak” tactics. The FBI is authorized to enter an empty building, take photos,
and install “magic lanterns”, a digital espionage device installed on hard drives
which records all computer activity. As of the beginning of 2005, it had been used
153 times, with only cases involving terrorism.49
 Section 505: The FBI need only declare that a National Security Letter (NSL) is
pertinent to an investigation involving terrorism to bypass authorization by a
judge. These letters subpoena practically all personal information of an individual
48
Surveillance Under the USA PATRIOT Act (American Civil Liberties Union) https://www.aclu.org/surveillance-
under-usa-patriot-act
49
Surveillance Under the USA PATRIOT Act (American Civil Liberties Union) https://www.aclu.org/surveillance-
under-usa-patriot-act

and were originally only intended to be used for counter-espionage against an
agent of a foreign power. Now they can be used by the FBI for near all criminal
activity and as of 2005 the FBI had issued 30,000 NSLs per year since 9/11. Once
again recipients of NSLs are barred from speaking about them, infringing upon
their First and Fourth Amendment rights.50
The Patriot act has acted as a lightning rod for criticism of government over reach. This
criticism is exceptionally warranted as the Patriot Act has dismantled many of the systems of
checks and balances, replacing them with a now legally enshrined assumption of greater
authority by the executive. Beyond its stated intent, the Patriot Act points to a rupture that had
occurred. The rupture in question was 9/11 and the introduction of the Patriot Act is the most
obvious example of establishing a boundary of before and after. We focus heavily on the Patriot
Act due to its continuous renewal as well, despite moving further and further from 9/11. In the
Patriot Act and its renewal we find the fear of our Founding Fathers personified: the exception
becomes the rule; with its renewal, the temporary becomes permanent.51
Roughly a month after the passing of the Patriot Act, President Bush laid out in detail
another hallmark of the permanent state of emergency: indefinite detention. On November 12,
2001 President Bush authorized the indefinite detention of and trial by “military commissions”
of non-citizens engaged in terrorist activities. The order built upon powers given to the Attorney
General only a month earlier by the Patriot Act to arrest any alien involved in terrorism. The
radical departure from the previously held norms was that, “it radically erases any legal status of
the individual, thus producing a legally unnamable and unclassifiable being. Not only do the
50
Jean-Claude Paye. From the State of Emergency to the Permanent State of Exception. Telos Fall 2006. 154.
51
Jean-Claude Paye. From the State of Emergency to the Permanent State of Exception. 155.

Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva
Convention, they do not even have the status of persons charged with a crime according to
American laws. Neither prisoners nor persons accused, but simply "detainees," they are the
object of a pure de facto rule, of a detention that is indefinite not only in the temporal sense but
in its very nature as well, since it is entirely removed from the law and from judicial
oversight.”52
Guantanamo Bay was deliberately chosen by the administration, the argument being
that being designated as unlawful combatants took away the prisoners‟ rights under the Geneva
Convention, while being held on “no-man‟s land” allowed the government to deny the detainees
the right of habeas corpus. The War on Terror has in essence given the President the power to
give people life sentences without trial. This power has been reinforced by the yearly passage of
the National Defense Authorization Act, which contains a provision explicitly giving the
executive the prerogative to hold prisoners indefinitely.53
The government‟s response in the War on Terror has thoroughly demonstrated what the
full applicability of supreme authority during a state of emergency entails. For most Americans,
the most shocking use of authority was with regards to the revelations brought forward by
Edward Snowden about NSA domestic spying. The revelations have been massive and once
again a full evaluation is beyond the scope of this paper. A quick overview shows us: that the
NSA has been collecting the details of every American‟s calling data without warrants; has real
time access to all phone and internet traffic; and has collected and stored the data from roughly
52
53
President Obama Signs Indefinite Detention Bill Into Law (American Civil Liberties Union)
https://www.aclu.org/news/president-obama-signs-indefinite-detention-bill-law?redirect=national-
security/president-obama-signs-indefinite-detention-bill-law

twenty trillion transactions.54
For many Americans this is the first real instance of the permanent
state of emergency reaching out and touching them. It is demonstrable evidence of the blurring
of the lines between the supposed tradeoff of minority rights versus the majority‟s security. It
demonstrated that absolute security as dictated by the permanent state of emergency demands an
ability to absolutely dismiss the rights of every citizen. All of this has been done, until recently,
once again without any real judicial or congressional oversight. Operating under the prerogative
of the executive the NSA was given free roam to operate and has been the case throughout the
permanent state of emergency broadened the scope of the executive‟s prerogative at the expense
of Constitutional liberties. In essence, between the NSA‟s operations and the Patriot Act, the
right to privacy has been abolished, swept aside and replaced with executive prerogative.
Since the end of World War II and the advent of the Cold War, America has found itself
in a permanent state of emergency. This permanent state of emergency can only exist due to the
non-application of the laws of the Constitution, the basis of the United States government.
Throughout my paper I have demonstrated how the permanent state of emergency negates the
rights upheld in the Constitution and the governance system of checks and balances established
to ensure the upholding of these rights. The permanent state of emergency existence being
enabled only through non-application of the Constitution presents it as the greatest threat to
America, wherein we understand the America being defended as a constitutionally based
democracy. Of course this issue exists in the paradox where the state of emergency exists to
protect the constitutionally based order. The exception is justified in the moment on the pretense
that it will serve the survival of the norm in the long run. This is the devil‟s advocate position on
the state of emergency, with the most pertinent example being President Lincoln‟s actions during
54
How the NSA’s Domestic Spying Program Works (Electronic Frontier Foundation) https://www.eff.org/nsa-
spying/how-it-works

the Civil War. However, even in the most justified example we have found evidence of the
danger of precedence being set. Precedence has dismantled the system of checks and balances
and invested supreme authority over application of the Constitution solely in the executive
branch. America‟s territorial integrity may have been preserved throughout the permanent state
of emergency, but at the expense of replacing a constitutionally based state with a permanent
state of emergency and replacing a system of checks and balances with a system of supreme
authority resting in the executive. America must return to the repetition of the Constitution and
reason or face a future of governance through fear and uncertainty as government policy is
decided in the moment, without regards to the idea of inalienable rights that our nation was
founded upon. A fully fleshed out answer to the problem of the permanent state of emergency is
beyond the scope of this paper. However, the author recognizes that we must start with its
dismantling and the reinstating of the Constitution as the highest law in the land.

Works Cited
Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press,
2005.Kindle Edition.
Bellamy, Alex J. Fighting Terror: Ethical Dilemmas. London: Zed Books, 2008.
Chebel d‟Appollonia, Ariane. Frontiers of Fear: Immigration and Insecurity in the
United States and Europe. Cornell University Press, 2012. Kindle Edition.
Gould, Rebecca. Laws, Exceptions, Norms: Kierkegaard, Schmitt, and Benjamin on the
Exception. Telos Spring 2013
Ignatieff, Michael. The Lesser Evil: Political Ethics in an Age of Terror. Princeton University
Press, 2005
Paye, Jean-Claude. From the State of Emergency to the Permanent State of Exception.
Telos Fall 2006.
Unger, David C. The Emergency State: America’s Pursuit of Absolute Security at All
Costs (New York: The Penguin Press, 2012). Kindle Edition.
Hamilton, Alexander. The Federalist #8. http://www.constitution.org/fed/federa08.html
Plutarch. Theseus. http://classics.mit.edu/Plutarch/theseus.html
How the NSA‟s Domestic Spying Program Works (Electronic Frontier Foundation)
https://www.eff.org/nsa-spying/how-it-works
President Obama Signs Indefinite Detention Bill Into Law (American Civil Liberties Union)
https://www.aclu.org/news/president-obama-signs-indefinite-detention-bill-
law?redirect=national-security/president-obama-signs-indefinite-detention-bill-law
Surveillance Under the USA PATRIOT Act (American Civil Liberties Union)
https://www.aclu.org/surveillance-under-usa-patriot-act
The Truman Doctrine, 1947-1945—1952-Milestones-Office of the Historian.
https://history.state.gov/milestones/1945-1952/truman-doctrine

Ethics and Global Affairs Term Paper

Empfohlen

Empfohlen

Weitere ähnliche Inhalte

Was ist angesagt?

Was ist angesagt? (18)

Andere mochten auch

Andere mochten auch (20)

Ähnlich wie Ethics and Global Affairs Term Paper

Ähnlich wie Ethics and Global Affairs Term Paper (12)

Ethics and Global Affairs Term Paper