Thank you for this reminder.<div><br></div><div>Also , it seems that its origins come from :</div><div><br></div><div><a href="http://en.wikipedia.org/wiki/Dictatorship">http://en.wikipedia.org/wiki/Dictatorship</a></div><div>
<br></div><div><i><span class="Apple-style-span" style="font-family: sans-serif; font-size: 13px; line-height: 19px; background-color: rgb(255, 255, 255); ">"A </span><a href="http://en.wikipedia.org/wiki/Roman_dictator" title="Roman dictator" style="text-decoration: none; color: rgb(6, 69, 173); background-image: none; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: rgb(255, 255, 255); font-family: sans-serif; font-size: 13px; line-height: 19px; ">Roman dictator</a><span class="Apple-style-span" style="font-family: sans-serif; font-size: 13px; line-height: 19px; background-color: rgb(255, 255, 255); "> was the incumbent of a </span><a href="http://en.wikipedia.org/wiki/Political_office" title="Political office" class="mw-redirect" style="text-decoration: none; color: rgb(6, 69, 173); background-image: none; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: rgb(255, 255, 255); font-family: sans-serif; font-size: 13px; line-height: 19px; ">political office</a><span class="Apple-style-span" style="font-family: sans-serif; font-size: 13px; line-height: 19px; background-color: rgb(255, 255, 255); "> of the </span><a href="http://en.wikipedia.org/wiki/Roman_Republic" title="Roman Republic" style="text-decoration: none; color: rgb(6, 69, 173); background-image: none; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: rgb(255, 255, 255); font-family: sans-serif; font-size: 13px; line-height: 19px; ">Roman Republic</a><span class="Apple-style-span" style="font-family: sans-serif; font-size: 13px; line-height: 19px; background-color: rgb(255, 255, 255); ">. Roman dictators were allocated absolute power during times of emergency. Their power was originally neither arbitrary nor unaccountable, being subject to </span><a href="http://en.wikipedia.org/wiki/Law" title="Law" style="text-decoration: none; color: rgb(6, 69, 173); background-image: none; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: rgb(255, 255, 255); font-family: sans-serif; font-size: 13px; line-height: 19px; ">law</a><span class="Apple-style-span" style="font-family: sans-serif; font-size: 13px; line-height: 19px; background-color: rgb(255, 255, 255); "> and requiring retrospective justification." </span></i></div>
<div><font class="Apple-style-span" face="sans-serif"><span class="Apple-style-span" style="line-height: 19px;"><br></span></font></div><div><font class="Apple-style-span" face="sans-serif"><span class="Apple-style-span" style="line-height: 19px;">In the french page on the subject, they mention the etymology of "the one who talks",</span></font></div>
<div><font class="Apple-style-span" face="sans-serif"><span class="Apple-style-span" style="line-height: 19px;">and also mention that usually , set by law, the period of emergency in which the dictator had power would not exceed 6 months.</span></font></div>
<div><font class="Apple-style-span" face="sans-serif"><span class="Apple-style-span" style="line-height: 19px;"><br></span></font></div><div><a href="http://fr.wikipedia.org/wiki/Dictature">http://fr.wikipedia.org/wiki/Dictature</a></div>
<div><br></div><div>which is interesting to compare with the "state of exception"</div><div><br></div><div><a href="http://en.wikipedia.org/wiki/State_of_exception">http://en.wikipedia.org/wiki/State_of_exception</a></div>
<div>( more detailed in french version : <a href="http://fr.wikipedia.org/wiki/%C3%89tat_d'exception">http://fr.wikipedia.org/wiki/%C3%89tat_d'exception</a> )</div><div><br></div><div>except that... we do not call it "dictatorship" anymore ?<br>
<br><div class="gmail_quote">On Fri, Dec 2, 2011 at 6:02 PM, mp <span dir="ltr"><<a href="mailto:mp@aktivix.org">mp@aktivix.org</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex;">
<div class="im"><br>
<br>
On 02/12/11 14:42, Patrick Anderson wrote:<br>
</div><div class="im">> Why would they do this?<br>
> People say "Write your Representative" as though we, the people, were<br>
> in control.<br>
> Who do the Representatives really represent?<br>
<br>
</div><div class="im">There is nothing new here at all, "the state of exception" has always<br>
</div>been central in/to "democracy", -- whenever "democracy", i.e. rule of<br>
capitalist, is threatened and has to be saved, it suspends its core<br>
values of equality before the law/rule of law (destroying the village in<br>
order to save it, as it were) in order to carry on. It never worked, it<br>
never will work, but what works is the amazing media macinery, built on<br>
top of techno promises of future salvation, that distorts reality and<br>
the public imagination to buy this shit:<br>
<div class="HOEnZb"><div class="h5"><a href="http://www.press.uchicago.edu/Misc/Chicago/009254.html" target="_blank">http://www.press.uchicago.edu/Misc/Chicago/009254.html</a><br>
<br>
A Brief History of the State of Exception<br>
by Giorgio Agamben<br>
An excerpt from State of Exception<br>
<br>
We have already seen how the state of siege had its origin in France<br>
during the Revolution. After being established with the Constituent<br>
Assembly's decree of July 8, 1791, it acquired its proper physiognomy as<br>
état de siège fictif or état de siège politique with the Directorial law<br>
of August 27, 1797, and, finally, with Napoleon's decree of December 24,<br>
1811. The idea of a suspension of the constitution (of the "rule of the<br>
constitution") had instead been introduced, as we have also seen, by the<br>
Constitution of 22 Frimaire Year 8. Article 14 of the Charte of 1814<br>
granted the sovereign the power to "make the regulations and ordinances<br>
necessary for the execution of the laws and the security of the State";<br>
because of the vagueness of the formula, Chateaubriand observed "that it<br>
is possible that one fine morning the whole Charte will be forfeited for<br>
the benefit of Article 14." The state of siege was expressly mentioned<br>
in the Acte additionel to the Constitution of April 22, 1815, which<br>
stated that it could only be declared with a law. Since then, moments of<br>
constitutional crisis in France over the course of the nineteenth and<br>
twentieth centuries have been marked by legislation on the state of<br>
siege. After the fall of the July Monarchy, a decree by the Constituent<br>
Assembly on June 24, 1848, put Paris in a state of siege and assigned<br>
General Cavaignac the task of restoring order in the city. Consequently,<br>
an article was included in the new constitution of November 4, 1848,<br>
establishing that the occasions, forms, and effects of the state of<br>
siege would be firmly set by a law. From this moment on, the dominant<br>
principle in the French tradition (though, as we will see, not without<br>
exceptions) has been that the power to suspend the laws can belong only<br>
to the same power that produces them, that is, parliament (in contrast<br>
to the German tradition, which entrusted this power to the head of<br>
state). The law of August 9, 1849 (which was partially restricted later<br>
by the law of April 4, 1878), consequently established that a political<br>
state of siege could be declared by parliament (or, additionally, by the<br>
head of state) in the case of imminent danger to external or internal<br>
security. Napoleon III had recourse several times to this law and, once<br>
installed in power, he transferred, in the constitution of January 1852,<br>
the exclusive power to proclaim a state of siege to the head of state.<br>
The Franco-Prussian War and the insurrection of the Commune coincided<br>
with an unprecedented generalization of the state of exception, which<br>
was proclaimed in forty departments and lasted in some of them until<br>
1876. On the basis of these experiences, and after MacMahon's failed<br>
coup d'état in May 1877, the law of 1849 was modified to establish that<br>
a state of siege could be declared only with a law (or, if the Chamber<br>
of Deputies was not in session, by the head of state, who was then<br>
obligated to convene parliament within two days) in the event of<br>
"imminent danger resulting from foreign war or armed insurrection" (law<br>
of April 3, 1878, Art. 1).<br>
<br>
World War One coincided with a permanent state of exception in the<br>
majority of the warring countries. On August 2, 1914, President Poincaré<br>
issued a decree that put the entire country in a state of siege, and<br>
this decree was converted into law by parliament two days later. The<br>
state of siege remained in force until October 12, 1919. Although the<br>
activity of parliament, which was suspended during the first six months<br>
of the war, recommenced in January 1915, many of the laws passed were,<br>
in truth, pure and simple delegations of legislative power to the<br>
executive, such as the law of February 10, 1918, which granted the<br>
government an all but absolute power to regulate by decree the<br>
production and trade of foodstuffs. As Tingsten has observed, in this<br>
way the executive power was transformed into a legislative organ in the<br>
material sense of the term. In any case, it was during this period that<br>
exceptional legislation by executive [governativo] decree (which is now<br>
perfectly familiar to us) became a regular practice in the European<br>
democracies.<br>
<br>
Predictably, the expansion of the executive's powers into the<br>
legislative sphere continued after the end of hostilities, and it is<br>
significant that military emergency now ceded its place to economic<br>
emergency (with an implicit assimilation between war and economics). In<br>
January 1924, at a time of serious crisis that threatened the stability<br>
of the franc, the Poincaré government asked for full powers over<br>
financial matters. After a bitter debate, in which the opposition<br>
pointed out that this was tantamount to parliament renouncing its own<br>
constitutional powers, the law was passed on March 22, with a four-month<br>
limit on the government's special powers. Analogous measures were<br>
brought to a vote in 1935 by the Laval government, which issued more<br>
than five hundred decrees "having force of law" in order to avoid the<br>
devaluation of the franc. The opposition from the left, led by Léon<br>
Blum, strongly opposed this "fascist" practice, but it is significant<br>
that once the Left took power with the Popular Front, it asked<br>
parliament in June 1937 for full powers in order to devalue the franc,<br>
establish exchange control, and impose new taxes. As has been observed,<br>
this meant that the new practice of legislation by executive<br>
[governativo] decree, which had been inaugurated during the war, was by<br>
now a practice accepted by all political sides. On June 30, 1937, the<br>
powers that had been denied Blum were granted to the Chautemps<br>
government, in which several key ministries were entrusted to<br>
nonsocialists. And on April 10, 1938, Édouard Daladier requested and<br>
obtained from parliament exceptional powers to legislate by decree in<br>
order to cope with both the threat of Nazi Germany and the economic<br>
crisis. It can therefore be said that until the end of the Third<br>
Republic "the normal procedures of parliamentary democracy were in a<br>
state of suspension." When we study the birth of the so-called<br>
dictatorial regimes in Italy and Germany, it is important not to forget<br>
this concurrent process that transformed the democratic constitutions<br>
between the two world wars. Under the pressure of the paradigm of the<br>
state of exception, the entire politico-constitutional life of Western<br>
societies began gradually to assume a new form, which has perhaps only<br>
today reached its full development. In December 1939, after the outbreak<br>
of the war, the Daladier government obtained the power to take by decree<br>
all measures necessary to ensure the defense of the nation. Parliament<br>
remained in session (except when it was suspended for a month in order<br>
to deprive the communist parliamentarians of their immunity), but all<br>
legislative activity lay firmly in the hands of the executive. By the<br>
time Marshal Pétain assumed power, the French parliament was a shadow of<br>
itself. Nevertheless, the Constitutional Act of July 11, 1940, granted<br>
the head of state the power to proclaim a state of siege throughout the<br>
entire national territory (which by then was partially occupied by the<br>
German army).<br>
<br>
In the present constitution, the state of exception is regulated by<br>
Article 16, which De Gaulle had proposed. The article establishes that<br>
the president of the Republic may take all necessary measures "when the<br>
institutions of the Republic, the independence of the Nation, the<br>
integrity of its territory, or the execution of its international<br>
commitments are seriously and immediately threatened and the regular<br>
functioning of the constitutional public powers is interrupted." In<br>
April 1961, during the Algerian crisis, De Gaulle had recourse to<br>
Article 16 even though the functioning of the public powers had not been<br>
interrupted. Since that time, Article 16 has never again been invoked,<br>
but, in conformity with a continuing tendency in all of the Western<br>
democracies, the declaration of the state of exception has gradually<br>
been replaced by an unprecedented generalization of the paradigm of<br>
security as the normal technique of government.<br>
<br>
α<br>
<br>
The history of Article 48 of the Weimar Constitution is so tightly woven<br>
into the history of Germany between the wars that it is impossible to<br>
understand Hitler's rise to power without first analyzing the uses and<br>
abuses of this article in the years between 1919 and 1933. Its immediate<br>
precedent was Article 68 of the Bismarckian Constitution, which, in<br>
cases where "public security was threatened in the territory of the<br>
Reich," granted the emperor the power to declare a part of the Reich to<br>
be in a state of war (Kriegszustand), whose conditions and limitations<br>
followed those set forth in the Prussian law of June 4, 1851, concerning<br>
the state of siege. Amid the disorder and rioting that followed the end<br>
of the war, the deputies of the National Assembly that was to vote on<br>
the new constitution (assisted by jurists among whom the name of Hugo<br>
Preuss stands out) included an article that granted the president of the<br>
Reich extremely broad emergency [eccezionali] powers. The text of<br>
Article 48 reads, "If security and public order are seriously<br>
[erheblich] disturbed or threatened in the German Reich, the president<br>
of the Reich may take the measures necessary to reestablish security and<br>
public order, with the help of the armed forces if required. To this end<br>
he may wholly or partially suspend the fundamental rights [Grundrechte]<br>
established in Articles 114, 115, 117, 118, 123, 124, and 153." The<br>
article added that a law would specify in detail the conditions and<br>
limitations under which this presidential power was to be exercised.<br>
Since that law was never passed, the president's emergency [eccezionali]<br>
powers remained so indeterminate that not only did theorists regularly<br>
use the phrase "presidential dictatorship" in reference to Article 48,<br>
but in 1925 Schmitt could write that "no constitution on earth had so<br>
easily legalized a coup d'état as did the Weimar Constitution."<br>
<br>
Save for a relative pause between 1925 and 1929, the governments of the<br>
Republic, beginning with Brüning's, made continual use of Article 48,<br>
proclaiming a state of exception and issuing emergency decrees on more<br>
than two hundred and fifty occasions; among other things, they employed<br>
it to imprison thousands of communist militants and to set up special<br>
tribunals authorized to pronounce capital sentences. On several<br>
occasions, particularly in October 1923, the government had recourse to<br>
Article 4 to cope with the fall of the mark, thus confirming the modern<br>
tendency to conflate politico-military and economic crises.<br>
<br>
It is well known that the last years of the Weimar Republic passed<br>
entirely under a regime of the state of exception; it is less obvious to<br>
note that Hitler could probably not have taken power had the country not<br>
been under a regime of presidential dictatorship for nearly three years<br>
and had parliament been functioning. In July 1930, the Brüning<br>
government was put in the minority, but Brüning did not resign. Instead,<br>
President Hindenburg granted him recourse to Article 48 and dissolved<br>
the Reichstag. From that moment on, Germany in fact ceased to be a<br>
parliamentary republic. Parliament met only seven times for no longer<br>
than twelve months in all, while a fluctuating coalition of Social<br>
Democrats and centrists stood by and watched a government that by then<br>
answered only to the president of the Reich. In 1932,<br>
Hindenburg—reelected president over Hitler and Thälmann—forced Brüning<br>
to resign and named the centrist von Papen to his post. On June 4, the<br>
Reichstag was dissolved and never reconvened until the advent of Nazism.<br>
On July 20, a state of exception was proclaimed in the Prussian<br>
territory, and von Papen was named Reich Commissioner for<br>
Prussia—ousting Otto Braun's Social Democratic government.<br>
<br>
The state of exception in which Germany found itself during the<br>
Hindenburg presidency was justified by Schmitt on a constitutional level<br>
by the idea that the president acted as the "guardian of the<br>
constitution;" but the end of the Weimar Republic clearly demonstrates<br>
that, on the contrary, a "protected democracy" is not a democracy at<br>
all, and that the paradigm of constitutional dictatorship functions<br>
instead as a transitional phase that leads inevitably to the<br>
establishment of a totalitarian regime.<br>
<br>
Given these precedents, it is understandable that the constitution of<br>
the Federal Republic did not mention the state of exception.<br>
Nevertheless, on June 24, 1968, the "great coalition" of Christian<br>
Democrats and Social Democrats passed a law for the amendment of the<br>
constitution (Gesetz zur Ergänzung des Grundgesetzes) that reintroduced<br>
the state of exception (defined as the "state of internal necessity,"<br>
innere Notstand). However, with an unintended irony, for the first time<br>
in the history of the institution, the proclamation of the state of<br>
exception was provided for not simply to safeguard public order and<br>
security, but to defend the "liberal-democratic constitution." By this<br>
point, protected democracy had become the rule.<br>
<br>
α<br>
<br>
On August 3, 1914, the Swiss Federal Assembly granted the Federal<br>
Council "the unlimited power to take all measures necessary to guarantee<br>
the security, integrity, and neutrality of Switzerland." This unusual<br>
act—by virtue of which a non-warring state granted powers to the<br>
executive that were even vaster and vaguer than those received by the<br>
governments of countries directly involved in the war—is of interest<br>
because of the debates it provoked both in the assembly itself and in<br>
the Swiss Federal Court when the citizens objected that the act was<br>
unconstitutional. The tenacity with which on this occasion the Swiss<br>
jurists (nearly thirty years ahead of the theorists of constitutional<br>
dictatorship) sought (like Waldkirch and Burckhardt) to derive the<br>
legitimacy of the state of exception from the text of the constitution<br>
itself (specifically, Article 2, which read, "the aim of the<br>
Confederation is to ensure the independence of the fatherland against<br>
the foreigner [and] to maintain internal tranquility and order"), or<br>
(like Hoerni and Fleiner) to ground the state of exception in a law of<br>
necessity "inherent in the very existence of the State," or (like His)<br>
in a juridical lacuna that the exceptional provisions must fill, shows<br>
that the theory of the state of exception is by no means the exclusive<br>
legacy of the antidemocratic tradition.<br>
<br>
α<br>
<br>
In Italy the history and legal situation of the state of exception are<br>
of particular interest with regard to legislation by emergency executive<br>
[governativi] decrees (the so-called law-decrees). Indeed, from this<br>
viewpoint one could say that Italy functioned as a true and proper<br>
juridico-political laboratory for organizing the process (which was also<br>
occurring to differing degrees in other European states) by which the<br>
law-decree "changed from a derogatory and exceptional instrument for<br>
normative production to an ordinary source for the production of law".<br>
But this also means that one of the essential paradigms through which<br>
democracy is transformed from parliamentary to executive<br>
[governamentale] was elaborated precisely by a state whose governments<br>
were often unstable. In any case, it is in this context that the<br>
emergency decree's pertinence to the problematic sphere of the state of<br>
exception comes clearly into view. The Albertine Statute (like the<br>
current Republican Constitution) made no mention of the state of<br>
exception. Nevertheless, the governments of the kingdom resorted to<br>
proclaiming a state of siege many times: in Palermo and the Sicilian<br>
provinces in 1862 and 1866, in Naples in 1862, in Sicily and Lunigiana<br>
in 1894, and in Naples and Milan in 1898, where the repression of the<br>
disturbances was particularly bloody and provoked bitter debates in<br>
parliament. The declaration of a state of siege on the occasion of the<br>
earthquake of Messina and Reggio Calabria on December 28, 1908 is only<br>
apparently a different situation. Not only was the state of siege<br>
ultimately proclaimed for reasons of public order—that is, to suppress<br>
the robberies and looting provoked by the disaster—but from a<br>
theoretical standpoint, it is also significant that these acts furnished<br>
the occasion that allowed Santi Romano and other Italian jurists to<br>
elaborate the thesis (which we examine in some detail later) that<br>
necessity is the primary source of law.<br>
<br>
In each of these cases, the state of siege was proclaimed by a royal<br>
decree that, while not requiring parliamentary ratification, was<br>
nevertheless always approved by parliament, as were other emergency<br>
decrees not related to the state of siege (in 1923 and 1924 several<br>
thousand outstanding law-decrees issued in the preceding years were thus<br>
converted into law). In 1926 the Fascist regime had a law issued that<br>
expressly regulated the matter of the law-decrees. Article 3 of this law<br>
established that, upon deliberation of the council of ministers, "norms<br>
having force of law" could be issued by royal decree "(1) when the<br>
government is delegated to do so by a law within the limits of the<br>
delegation, and (2) in extraordinary situations, in which it is required<br>
for reasons of urgent and absolute necessity. The judgment concerning<br>
necessity and urgency is not subject to any oversight other than<br>
parliament's political oversight." The decrees provided for in the<br>
second clause had to be presented to parliament for conversion into law;<br>
but parliament's total loss of autonomy during the Fascist regime<br>
rendered this condition superfluous.<br>
<br>
Although the Fascist governments' abuse of emergency decrees was so<br>
great that in 1939 the regime itself felt it necessary to limit their<br>
reach, Article 77 of the Republican Constitution established with<br>
singular continuity that "in extraordinary situations of necessity and<br>
emergency" the government could adopt "provisional measures having force<br>
of law," which had to be presented the same day to parliament and which<br>
went out of effect if not converted into law within sixty days of their<br>
issuance.<br>
<br>
It is well known that since then the practice of executive<br>
[governamentale] legislation by law-decrees has become the rule in<br>
Italy. Not only have emergency decrees been issued in moments of<br>
political crisis, thus circumventing the constitutional principle that<br>
the rights of the citizens can be limited only by law (see, for example,<br>
the decrees issued for the repression of terrorism: the law-decree of<br>
March 28, 1978, n. 59, converted into the law of May 21 1978, n. 191<br>
[the so-called Moro Law], and the law-decree of December 15, 1979, n.<br>
625, converted into the law of February 6, 1980, n. 15), but law-decrees<br>
now constitute the normal form of legislation to such a degree that they<br>
have been described as "bills strengthened by guaranteed emergency."<br>
This means that the democratic principle of the separation of powers has<br>
today collapsed and that the executive power has in fact, at least<br>
partially, absorbed the legislative power. Parliament is no longer the<br>
sovereign legislative body that holds the exclusive power to bind the<br>
citizens by means of the law: it is limited to ratifying the decrees<br>
issued by the executive power. In a technical sense, the Italian<br>
Republic is no longer parliamentary, but executive [governamentale]. And<br>
it is significant that though this transformation of the constitutional<br>
order (which is today underway to varying degrees in all the Western<br>
democracies) is perfectly well known to jurists and politicians, it has<br>
remained entirely unnoticed by the citizens. At the very moment when it<br>
would like to give lessons in democracy to different traditions and<br>
cultures, the political culture of the West does not realize that it has<br>
entirely lost its canon.<br>
<br>
α<br>
<br>
The only legal apparatus in England that is comparable to the French<br>
état de siège goes by the term martial law; but this concept is so vague<br>
that it has been rightly described as an "unlucky name for the<br>
justification by the common law of acts done by necessity for the<br>
defence of the Commonwealth when there is war within the realm." This,<br>
however, does not mean that something like a state of exception could<br>
not exist. In the Mutiny Acts, the Crown's power to declare martial law<br>
was generally confined to times of war; nevertheless, it necessarily<br>
entailed sometimes serious consequences for the civilians who found<br>
themselves factually involved in the armed repression. Thus Schmitt<br>
sought to distinguish martial law from the military tribunals and<br>
summary proceedings that at first applied only to soldiers, in order to<br>
conceive of it as a purely factual proceeding and draw it closer to the<br>
state of exception: "Despite the name it bears, martial law is neither a<br>
right nor a law in this sense, but rather a proceeding guided<br>
essentially by the necessity of achieving a certain end."<br>
<br>
World War One played a decisive role in the generalization of<br>
exceptional executive [governamentali] apparatuses in England as well.<br>
Indeed, immediately after war was declared, the government asked<br>
parliament to approve a series of emergency measures that had been<br>
prepared by the relevant ministers, and they were passed virtually<br>
without discussion. The most important of these acts was the Defence of<br>
the Realm Act of August 4, 1914, known as DORA, which not only granted<br>
the government quite vast powers to regulate the wartime economy, but<br>
also provided for serious limitations on the fundamental rights of the<br>
citizens (in particular, granting military tribunals jurisdiction over<br>
civilians). The activity of parliament saw a significant eclipse for the<br>
entire duration of the war, just as in France. And in England too this<br>
process went beyond the emergency of the war, as is shown by the<br>
approval—on October 29, 1920, in a time of strikes and social<br>
tensions—of the Emergency Powers Act. Indeed, Article 1 of the act<br>
stated that<br>
<br>
if at any time it appears to His Majesty that any action has been<br>
taken or is immediately threatened by any persons or body of persons of<br>
such a nature and on so extensive a scale as to be calculated, by<br>
interfering with the supply and distribution of food, water, fuel, or<br>
light, or with the means of locomotion, to deprive the community, or any<br>
substantial portion of the community, of the essentials of life, His<br>
Majesty may, by proclamation (hereinafter referred to as a proclamation<br>
of emergency), declare that a state of emergency exists.<br>
<br>
Article 2 of the law gave His Majesty in Council the power to issue<br>
regulations and to grant the executive the "powers and duties…necessary<br>
for the preservation of the peace," and it introduced special courts<br>
("courts of summary jurisdiction") for offenders. Even though the<br>
penalties imposed by these courts could not exceed three months in jail<br>
("with or without hard labor"), the principle of the state of exception<br>
had been firmly introduced into English law.<br>
<br>
α<br>
<br>
The place—both logical and pragmatic—of a theory of the state of<br>
exception in the American constitution is in the dialectic between the<br>
powers of the president and those of Congress. This dialectic has taken<br>
shape historically (and in an exemplary way already beginning with the<br>
Civil War) as a conflict over supreme authority in an emergency<br>
situation; or, in Schmittian terms (and this is surely significant in a<br>
country considered to be the cradle of democracy), as a conflict over<br>
sovereign decision.<br>
<br>
The textual basis of the conflict lies first of all in Article 1 of the<br>
constitution, which establishes that "the Privilege of the Writ of<br>
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion<br>
or Invasion the public Safety may require it" but does not specify which<br>
authority has the jurisdiction to decide on the suspension (even though<br>
prevailing opinion and the context of the passage itself lead one to<br>
assume that the clause is directed at Congress and not the president).<br>
The second point of conflict lies in the relation between another<br>
passage of Article 1 (which declares that the power to declare war and<br>
to raise and support the army and navy rests with Congress) and Article<br>
2, which states that "the President shall be Commander in Chief of the<br>
Army and Navy of the United States."<br>
<br>
Both of these problems reach their critical threshold with the Civil War<br>
(1861–1865). Acting counter to the text of Article 1, on April 15, 1861,<br>
Lincoln decreed that an army of seventy-five thousand men was to be<br>
raised and convened a special session of Congress for July 4. In the ten<br>
weeks that passed between April 15 and July 4, Lincoln in fact acted as<br>
an absolute dictator (for this reason, in his book Dictatorship, Schmitt<br>
can refer to it as a perfect example of commissarial dictatorship. On<br>
April 27, with a technically even more significant decision, he<br>
authorized the General in Chief of the Army to suspend the writ of<br>
habeas corpus whenever he deemed it necessary along the military line<br>
between Washington and Philadelphia, where there had been disturbances.<br>
Furthermore, the president's autonomy in deciding on extraordinary<br>
measures continued even after Congress was convened (thus, on February<br>
14, 1862, Lincoln imposed censorship of the mail and authorized the<br>
arrest and detention in military prisons of persons suspected of<br>
"disloyal and treasonable practices").<br>
<br>
In the speech he delivered to Congress when it was finally convened on<br>
July 4, the president openly justified his actions as the holder of a<br>
supreme power to violate the constitution in a situation of necessity.<br>
"Whether strictly legal or not," he declared, the measures he had<br>
adopted had been taken "under what appeared to be a popular demand and a<br>
public necessity" in the certainty that Congress would ratify them. They<br>
were based on the conviction that even fundamental law could be violated<br>
if the very existence of the union and the juridical order were at stake<br>
("Are all the laws but one to go unexecuted, and the Government itself<br>
go to pieces lest that one be violated?"<br>
<br>
It is obvious that in a wartime situation the conflict between the<br>
president and Congress is essentially theoretical. The fact is that<br>
although Congress was perfectly aware that the constitutional<br>
jurisdictions had been transgressed, it could do nothing but ratify the<br>
actions of the president, as it did on August 6, 1861. Strengthened by<br>
this approval, on September 22, 1862, the president proclaimed the<br>
emancipation of the slaves on his authority alone and, two days later,<br>
generalized the state of exception throughout the entire territory of<br>
the United States, authorizing the arrest and trial before courts<br>
martial of "all Rebels and Insurgents, their aiders and abettors within<br>
the United States, and all persons discouraging volunteer enlistments,<br>
resisting militia drafts, or guilty of any disloyal practice, affording<br>
aid and comfort to Rebels against the authority of the United States."<br>
By this point, the president of the United States was the holder of the<br>
sovereign decision on the state of exception.<br>
<br>
According to American historians, during World War One President Woodrow<br>
Wilson personally assumed even broader powers than those Abraham Lincoln<br>
had claimed. It is, however, necessary to specify that instead of<br>
ignoring Congress, as Lincoln had done, Wilson preferred each time to<br>
have the powers in question delegated to him by Congress. In this<br>
regard, his practice of government is closer to the one that would<br>
prevail in Europe in the same years, or to the current one, which<br>
instead of declaring the state of exception prefers to have exceptional<br>
laws issued. In any case, from 1917 to 1918, Congress approved a series<br>
of acts (from the Espionage Act of June 1917 to the Overman Act of May<br>
1918) that granted the president complete control over the<br>
administration of the country and not only prohibited disloyal<br>
activities (such as collaboration with the enemy and the diffusion of<br>
false reports), but even made it a crime to "willfully utter, print,<br>
write, or publish any disloyal, profane, scurrilous, or abusive language<br>
about the form of government of the United States."<br>
<br>
Because the sovereign power of the president is essentially grounded in<br>
the emergency linked to a state of war, over the course of the twentieth<br>
century the metaphor of war becomes an integral part of the presidential<br>
political vocabulary whenever decisions considered to be of vital<br>
importance are being imposed. Thus, in 1933, Franklin D. Roosevelt was<br>
able to assume extraordinary powers to cope with the Great Depression by<br>
presenting his actions as those of a commander during a military campaign:<br>
<br>
I assume unhesitatingly the leadership of this great army of our<br>
people dedicated to a disciplined attack upon our common problems.…I am<br>
prepared under my constitutional duty to recommend the measures that a<br>
stricken Nation in the midst of a stricken world may require.…But in the<br>
event that the Congress shall fail to take [the necessary measures] and<br>
in the event that the national emergency is still critical, I shall not<br>
evade the clear course of duty that will then confront me. I shall ask<br>
the Congress for the one remaining instrument to meet the crisis—broad<br>
Executive power to wage war against the emergency, as great as the power<br>
that would be given to me if we were in fact invaded by a foreign foe.<br>
<br>
It is well not to forget that, from the constitutional standpoint, the<br>
New Deal was realized by delegating to the president (through a series<br>
of statutes culminating in the National Recovery Act of June 16, 1933)<br>
an unlimited power to regulate and control every aspect of the economic<br>
life of the country—a fact that is in perfect conformity with the<br>
already mentioned parallelism between military and economic emergencies<br>
that characterizes the politics of the twentieth century.<br>
<br>
The outbreak of World War Two extended these powers with the<br>
proclamation of a "limited" national emergency on September 8, 1939,<br>
which became unlimited on May 27, 1941. On September 7, 1942, while<br>
requesting that Congress repeal a law concerning economic matters, the<br>
president renewed his claim to sovereign powers during the emergency:<br>
"In the event that the Congress should fail to act, and act adequately,<br>
I shall accept the responsibility, and I will act.…The American people<br>
can…be sure that I shall not hesitate to use every power vested in me to<br>
accomplish the defeat of our enemies in any part of the world where our<br>
own safety demands such defeat." The most spectacular violation of civil<br>
rights (all the more serious because of its solely racial motivation)<br>
occurred on February 19, 1942, with the internment of seventy thousand<br>
American citizens of Japanese descent who resided on the West Coast<br>
(along with forty thousand Japanese citizens who lived and worked there).<br>
<br>
President Bush's decision to refer to himself constantly as the<br>
"Commander in Chief of the Army" after September 11, 2001, must be<br>
considered in the context of this presidential claim to sovereign powers<br>
in emergency situations. If, as we have seen, the assumption of this<br>
title entails a direct reference to the state of exception, then Bush is<br>
attempting to produce a situation in which the emergency becomes the<br>
rule, and the very distinction between peace and war (and between<br>
foreign and civil war) becomes impossible.<br>
<br>
<br>
><br>
</div></div><div class="HOEnZb"><div class="h5">> On Fri, Dec 2, 2011 at 5:21 AM, Michel Bauwens <<a href="mailto:michel@p2pfoundation.net">michel@p2pfoundation.net</a>> wrote:<br>
>><br>
>><br>
>> ---------- Forwarded message ----------<br>
>> From: Dante-Gabryell Monson <<a href="mailto:dante.monson@gmail.com">dante.monson@gmail.com</a>><br>
>> Date: Fri, Dec 2, 2011 at 9:04 AM<br>
>> Subject: "Senate Votes To Let Military Detain Americans Indefinitely"<br>
>> To: <a href="mailto:econowmix@googlegroups.com">econowmix@googlegroups.com</a><br>
>><br>
>><br>
>><br>
>> unfortunately, only the beginning, as confirmed by recent a recent law<br>
>> passing the senate in the US ?<br>
>><br>
>> Senate Votes To Let Military Detain Americans Indefinitely<br>
>><br>
>> <a href="http://www.huffingtonpost.com/2011/11/29/senate-votes-to-let-military-detain-americans-indefinitely_n_1119473.html" target="_blank">http://www.huffingtonpost.com/2011/11/29/senate-votes-to-let-military-detain-americans-indefinitely_n_1119473.html</a><br>
>> <a href="http://www.wired.com/dangerroom/2011/12/senate-military-detention/" target="_blank">http://www.wired.com/dangerroom/2011/12/senate-military-detention/</a><br>
>> also see :<br>
>> <a href="http://endoftheamericandream.com/archives/30-signs-that-the-united-states-of-america-is-being-turned-into-a-giant-prison" target="_blank">http://endoftheamericandream.com/archives/30-signs-that-the-united-states-of-america-is-being-turned-into-a-giant-prison</a><br>
>><br>
>><br>
>><br>
>>><br>
>>> ________________________________<br>
>>> From: Dante-Gabryell Monson [mailto:<a href="mailto:dante.monson@gmail.com">dante.monson@gmail.com</a>]<br>
>>> Sent: Sunday, November 27, 2011 1:14 PM<br>
>>> To: undisclosed-recipients<br>
>>> Subject: Article : "Why on earth would Congress advise violent militarised<br>
>>> reactions against its own peaceful constituents? "<br>
>>><br>
>>> The shocking truth about the crackdown on Occupy<br>
>>><br>
>>> The violent police assaults across the US are no coincidence. Occupy has<br>
>>> touched the third rail of our political class's venality<br>
>>><br>
>>> Naomi Wolf<br>
>>> <a href="http://guardian.co.uk" target="_blank">guardian.co.uk</a>,�Friday 25 November 2011 17.25 GMT<br>
>>><br>
>>> <a href="http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/25/shocking-truth-about-crackdown-occupy?newsfeed=true" target="_blank">http://www.guardian.co.uk/commentisfree/cifamerica/2011/nov/25/shocking-truth-about-crackdown-occupy?newsfeed=true</a><br>
>>> large excerpts :<br>
>>> "US citizens of all political persuasions are still reeling from images of<br>
>>> unparallelled police brutality in a�coordinated crackdown against peaceful<br>
>>> OWS protesters in cities across the nation this past week."<br>
>>> "The National Union of Journalists and the Committee to Protect<br>
>>> Journalists issued a Freedom of Information Act request to investigate<br>
>>> possible federal involvement with law enforcement practices that appeared to<br>
>>> target journalists.�The New York Times reported�that "New York�cops have<br>
>>> arrested, punched, whacked, shoved to the ground and tossed a barrier at<br>
>>> reporters and photographers" covering protests. "<br>
>>><br>
>>> "Journalist Chris Hayes reported on a leaked memo�that revealed lobbyists<br>
>>> vying for an $850,000 contract to smear Occupy. Message coordination of this<br>
>>> kind is impossible without a full-court press at the top. This was clearly<br>
>>> not simply a case of a freaked-out mayors', city-by-city municipal<br>
>>> overreaction against mess in the parks and cranky campers. As the puzzle<br>
>>> pieces fit together, they began to show coordination against OWS at the<br>
>>> highest national levels."<br>
>>><br>
>>> "The DHS cannot say, on its own initiative, "we are going after these<br>
>>> scruffy hippies". Rather, DHS is answerable up a chain of command"<br>
>>><br>
>>> "for the DHS�to be on a call with mayors, the logic of its chain of<br>
>>> command and accountability implies that congressional overseers, with the<br>
>>> blessing of the White House, told the DHS to authorise mayors to order their<br>
>>> police forces � pumped up with millions of dollars of hardware and training<br>
>>> from the DHS � to make war on peaceful citizens."<br>
>>><br>
>>> "The mainstream media was declaring continually "OWS has no message".<br>
>>> Frustrated, I simply asked them. I began soliciting online "What is it you<br>
>>> want?" answers from Occupy. In the first 15 minutes, I received 100 answers.<br>
>>> These were truly eye-opening.<br>
>>><br>
>>> The No 1 agenda item: get the money out of politics. Most often cited was<br>
>>> legislation to blunt the effect of the Citizens United ruling, which lets<br>
>>> boundless sums enter the campaign process. No 2: reform the banking system<br>
>>> to prevent fraud and manipulation, with the most frequent item being to<br>
>>> restore the Glass-Steagall Act � the Depression-era law, done away with by<br>
>>> President Clinton, that separates investment banks from commercial banks.<br>
>>> This law would correct the conditions for the recent crisis, as investment<br>
>>> banks could not take risks for profit that create kale derivatives out of<br>
>>> thin air, and wipe out the commercial and savings banks.<br>
>>><br>
>>> No 3 was the most clarifying: draft laws against the little-known loophole<br>
>>> that currently allows members of Congress to pass legislation affecting<br>
>>> Delaware-based corporations in which�they themselves are investors."<br>
>>><br>
>>> "why on earth would Congress advise violent militarised reactions against<br>
>>> its own peaceful constituents? The answer is straightforward: in recent<br>
>>> years, members of Congress have started entering the system as members of<br>
>>> the middle class (or upper middle class) � but they are leaving DC privy to<br>
>>> vast personal wealth, as we see from the "scandal" of presidential contender<br>
>>> Newt Gingrich's having been paid $1.8m for a few hours' "consulting" to<br>
>>> special interests. The inflated fees to lawmakers who turn lobbyists are<br>
>>> common knowledge, but the notion that�congressmen and women are legislating<br>
>>> their own companies' profitsis less widely known � and if the books were to<br>
>>> be opened, they would surely reveal corruption on a Wall Street spectrum.<br>
>>> Indeed,�we do already know that congresspeople are massively profiting from<br>
>>> trading on non-public information�they have on companies about which they<br>
>>> are legislating "<br>
>>><br>
>>> "Since Occupy is heavily surveilled and infiltrated, it is likely that the<br>
>>> DHS and police informers are aware, before Occupy itself is, what its<br>
>>> emerging agenda is going to look like. If legislating away lobbyists'<br>
>>> privileges to earn boundless fees once they are close to the legislative<br>
>>> process, reforming the banks so they can't suck money out of fake<br>
>>> derivatives products, and, most critically, opening the books on a system<br>
>>> that allowed members of Congress to profit personally � and immensely � from<br>
>>> their own legislation, are two beats away from the grasp of an electorally<br>
>>> organised�Occupy movement�� well, you will call out the troops on stopping<br>
>>> that advance.<br>
>>><br>
>>> So, when you connect the dots, properly understood, what happened this<br>
>>> week is the first battle in a civil war; a civil war in which, for now, only<br>
>>> one side is choosing violence. It is a battle in which members of Congress,<br>
>>> with the collusion of the American president, sent violent, organised<br>
>>> suppression against the people they are supposed to represent. Occupy has<br>
>>> touched the third rail: personal congressional profits streams. Even though<br>
>>> they are, as yet, unaware of what the implications of their movement are,<br>
>>> those threatened by the stirrings of their dreams of reform are not."<br>
>>><br>
>><br>
>><br>
>><br>
>><br>
>><br>
>> --<br>
>> P2P Foundation: <a href="http://p2pfoundation.net" target="_blank">http://p2pfoundation.net</a>� - <a href="http://blog.p2pfoundation.net" target="_blank">http://blog.p2pfoundation.net</a><br>
>><br>
>> Connect: <a href="http://p2pfoundation.ning.com" target="_blank">http://p2pfoundation.ning.com</a>;<br>
>> Discuss:�<a href="http://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation" target="_blank">http://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation</a><br>
>> Updates: <a href="http://del.icio.us/mbauwens" target="_blank">http://del.icio.us/mbauwens</a>; <a href="http://friendfeed.com/mbauwens" target="_blank">http://friendfeed.com/mbauwens</a>;<br>
>> <a href="http://twitter.com/mbauwens" target="_blank">http://twitter.com/mbauwens</a>; <a href="http://www.facebook.com/mbauwens" target="_blank">http://www.facebook.com/mbauwens</a><br>
>><br>
>><br>
>> _______________________________________________<br>
>> P2P Foundation - Mailing list<br>
>> <a href="http://www.p2pfoundation.net" target="_blank">http://www.p2pfoundation.net</a><br>
>> <a href="https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation" target="_blank">https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation</a><br>
>><br>
>><br>
><br>
> _______________________________________________<br>
> P2P Foundation - Mailing list<br>
> <a href="http://www.p2pfoundation.net" target="_blank">http://www.p2pfoundation.net</a><br>
> <a href="https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation" target="_blank">https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation</a><br>
><br>
<br>
_______________________________________________<br>
P2P Foundation - Mailing list<br>
<a href="http://www.p2pfoundation.net" target="_blank">http://www.p2pfoundation.net</a><br>
<a href="https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation" target="_blank">https://lists.ourproject.org/cgi-bin/mailman/listinfo/p2p-foundation</a><br>
</div></div></blockquote></div><br></div>