One of the sticking points in the current debate over the renewal of the Foreign Intelligence Surveillence Act of 1978 is whether or not retroactive immunity should be granted to the telecommunications companies which -- at the request of President Bush -- illegally listened in on the conversations of American citizens without a warrant. These companies now wish to be protected from both civil and potentially criminal damages. The most frequent argument I have heard from defenders of the telecommunications companies has been that they were simply attempting to fill what they thought to be valid requests for information. Given the sheer volume of information gathered, I believe this to be unlikely.
However, even if the telecommunications companies were acting extra-legally, I can see one valid explanation for why they should be allowed off the hook for violating -- or at least going beyond -- any reasonable interpretation of the laws on the books. If we accept that we exist in what the German legal theorist Carl Schmitt would have called "a state of exception", then such an activity is not only legal, but acceptable. If we do not, then the question becomes one of whether or not we should provide retroactive immunity to all citizens who overstep the lines our laws so firmly draw in the sand.
So what is a state of exception?
The answer is quite simple. For Schmitt, the state of exception is one where there exists "unlimited authority" (12) for the the decision-maker. In this sense, "the decision frees itself from all normative ties and becomes in the true sense absolute. The state suspends the law in the exception on the basis of its right to self-preservation." (12). If that does not sound familliar to you, it should. An identical line of argumentation is employed by those who claim that the powers inherent in Article II of the US Constitution are applicable to today's situation.
There is no doubt that the United States is locked in a conflict, however, the question must become one of whether or not the very existence of the United States is threatened by the current order of things. Personally, I am not inclined to agree with that position. The United States has faced other -- more dire -- threats in the past, and it will likely face them in the future. Simply put, I doubt that Al Qaeda has the capacity to destroy America, and I fear that if we put the situation we find ourselves in on the same level as the situations which gave rise to the declaration of martial law in 1861, Ex Parte Vallandigham, Korematsu v. United States, and Executive Order #9066, we will only make it easier for a President to declare that a state of exception exists and that the powers inherent in Article II should enter into effect.
Perhaps this is just me being an idealist. Perhaps my memory of Aeschylus' famous maxim "power newly won is always harsh." Perhaps I am worried over nothing, but somehow, I doubt it.
So now we return to our telecommunications companies. If we truly are in a state of exception then they are off the hook. I might not like the precent it sets, but at the moment I cannot change it. If, however, we are not in a state of exception, then potentially granting the telecommunications companies retroactive immunity sets a dangerous precedent. A precedent in which ex post facto laws are passed to protect the well-connected who acted against the laws with impunity hoping that the public would be too terrified to contradict them. Please contact your members of Congress and tell them that you oppose retroactive immunity. The Senate has passed it, but the House has not, so there is still a good chance at stopping it.
Works Cited:
1. Schwab, George. 1985. Political Theology: Four Chapters on the Concept of Sovereignty. University of Chicago Press.
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First and foremost, great post. Luckily, the house has opposed Bush's push for legalization. I completely agree with you (and Schmit) that there can be a state of exception. However, to make that state of exception a permanent exception will inevitably violate our rights as American citizens. To allow this to happen would move our country closer to a communistic government, and that is not a government that I would like to live under.
The state of exception is something that leads only to Communism, though perhaps in our American consciousness it leads there first. Rather, I believe that a state of permanent -- or at least easily declarable -- exception leads to rise in Authoritarianism. Consequently, there are two separate economic systems (modern) under which an Authoritarian regime may exist: Communism, and Fascism.